Commons FAQ

Question:

Our insurance brokers are reviewing cover for our insurance renewal. We have long held Liability cover for £10m Public liability and £5m employers liability, but in the light of recent cases, we are advised that this may not be adequate.

We have a constitution but I wonder if there is anything in the 1965 or other Acts or any case law you are aware of which would help us to establish how liability, established against the Committee, might extend to individuals as committee members, trustees, staff or graziers.

We were wondering if immunities found in charities might be useful to Committee members and if we should apply to the Charities Commissioners for charitable status.

Expert response:

We have talked to a solicitor who specializes in common land. He has made inquiries regarding liability with respect to livestock claims and has concluded that while the owner is the first person against whom a claim would be taken the committee are potentially liable and they should take out insurance.

In terms of Trustee liability for a charity the following is taken from the National Council for Voluntary Organisations.

Trustee liability

It is very rare for a charity trustee who acts reasonably and in good faith to be held personally financially liable for their actions.

Trustees who act prudently, lawfully and in accordance with the charity’s governing document can generally seek reimbursement of any personal liabilities out of the charity’s resources.

However, liability is a concern and it is important for all trustees to be aware of the situation.

Trustees can potentially be held liable for breaches of their duties – for example, if they act outside the governing document or fail to follow a statutory or legal requirement.

Trustees can also potentially be liable to third parties and, in some cases, for the debts of the charity. A trustee’s liability for the charity’s debts depends mainly on the legal structure of the charity – whether it is incorporated or unincorporated.

There are a range of methods available to minimise personal liability. The most effective way of minimising liability is to use an incorporated structure and to insure and follow good governance practice and ensure trustees are following their duties and responsibilities.

Question:

Just wondered if you could answer a question for me? Can the owner of a common plant trees on it without consent of the commoners? Well, actually, with the commoners against the planting and with the commoner owning his rights and NOT a tenant of the landowner.

Expert response:

This is interesting as usually it is the fencing associated with the tree planting that requires the Secretary of State consent rather than the actual tree planting. If the trees are to be fenced then Commoners need to be notified as part of the s38 application process and if they object the inspectorate (PINS) will consider this. If it is only one commoner and the others are in favour then it may not be considered a material objection e.g. if most have signed the HLS then they have to agree with the tree planting in the scheme or they are in breach of the HLS. It will only be those who haven't signed that have a right to object.

I've had a case recently where a commoner decided at the last minute not to sign the HLS and is now objecting that the trees are on 'his' heft. He hasn't though had any sheep on the fell for over ten years and hasn't started grazing again. Also in that case the number are low so there is plenty of space for him to graze though not on his original 'heft'. Not sure what weight the inspector would give to a heft that has had no sheep on it as there are no hefted sheep and 'heft' has no legal rights it is more of a use it or lose it custom and practice. Very important but only exists if in use.

If the trees are not going to be fenced then it is a less clear position. Does tree planting count as works under the Act? I would have thought it should and the commoner could report the works to PINS.

The commoner(s) also would need to demonstrate that their grazing rights are interfered with and this would depend on the overall stocking level on the common.

Overall the matter will depend on the specific circumstances of the common and the commoner and the scheme (if any)

Julia Aglionby (Chairman FCC)

Question:

The Field Reeves of a regulated pasture in the north of England have been asked by the owner of the moor to give consent to the installation of track across the moor. They are prepared to agree to this but want to ensure that they don’t in any way limit their rights in future.

They want to apply legally binding conditions to the consent relating to the construction, maintenance and future use of the road, for example: no spurs to the road; padlocked barriers and keys only given to those with approval of the Field Reeves; compensation for any loss of forage area in relation to existing and future agricultural and land management schemes. They will also need planning permission and this should be a condition of the works

Expert response:

To achieve this they need to instruct a solicitor to draw up a legally binding document and get an undertaking for costs from the Owners. The Field Reeves should not bear the cost when they do not want the track.

It is worth considering the penalty if the Owners breach the internal agreement - you can't really make them take the road up but you could impose a fine.