Commons Bill [Lords]

The amendments relate to clause 13, which abolishes the principle by which rights of common may be extinguished at common law, except where rights of common are surrendered in accordance with the prescribed procedure. They are intended to ensure that the abolition of that principle is confined only to an unlawful attempt to sever rights of common attached to land. The hon. Member for South-East Cambridgeshire (Mr. Paice) has raised the question how rights of common could be apportioned between numerous houses developed on a dominant tenement. It is certainly conceivable that a right of common may be apportioned between numerous dwellings. For example, the commons register may show that farm A has the right to graze 50 sheep. If farm A were sold to a developer, who in turn sold off 50 plots, each of which had a house built on it, each of those house owners would have the right to graze one sheep. We see nothing improper about that outcome. Certainly the owners of those houses are unlikely to exercise those rights, and the constitution of any statutory commons council established under part 2—this important point goes some way to answering the concern raised by the hon. Member for South-East Cambridgeshire—may well give preference to active commoners against inactive householders. So long as the householders are entitled to the right to graze to one or more animals, they will be entitled to exercise it. The hon. Member for South-East Cambridgeshire has also raised the issue of ensuring that rights of common cease to apply where the dominant tenement is developed. In our view, it is correct to say that the development of the dominant tenement so that it can no longer be used for agriculture would at common law extinguish the rights attached to the land. Clause 13(3) abolishes that principle, and we believe that that approach is both fair and consistent with present practice. The approach is fair, because it would be invidious for registration authorities to decide whether a dominant tenement had ceased to have an agricultural use. Would a house with a grazing paddock qualify to retain the rights? And what if a large garden could be converted back to grazing? The approach is consistent, because the effect of registration under the Commons Registration Act 1965 was inadvertently to break the link between the number of animals which could be grazed on the common and the capacity of the dominant tenement to over-winter the same animals—the principles of levancy and couchancy. It would be absurd to provide that a 1 hectare smallholding could have any number of rights attached to it, but that the same dwelling with only a small garden could have none. I do not accept that that change disadvantages the owner of the common. The common will remain subject to registered rights of common, irrespective of changes affecting the dominant tenements to which rights are attached, which is a perfectly reasonable outcome. Of course, if the dominant tenement is developed for housing, it is most unlikely that the rights will continue to be exercised, which will often be to the common owner’s profit. With many lowland commons now under-grazed, the preservation of such rights will also help to ensure the retention of mechanisms through which grazing could be introduced if required. One of the merits of the registration of rights of common under the Bill is to deliver certainty on the existence of those rights. In our view, it is not helpful if a registered right can be challenged on the grounds of some event happening off register, which means that the right has ceased to exist, although it may remain on the register. I hope that that explanation encourages the hon. Member for South-East Cambridgeshire not to press the amendment to the vote.