Legal Interests and Management Control
Check property rights
All property rights over a common should be assessed before entering an agri-environment scheme. These include rights of commons, rights of landowners and those with sporting rights, mineral rights and rights of way. The assessment should:
check that all those signing up to an agreement have management control of grazing and/or burning for the duration of the agreement
check no one has been left out of the agreement who could disrupt it
Property rights may be in use by the owner or by a tenant or licencee. It is important to understand the type of tenancy as it may not give management control for long enough to enter an agreement without the landlord’s consent. ELS/UELS agreements are for five years while HLS agreements last for ten years, with a break clause at five years. In addition, some tenancy agreements preclude entry into agri-environment agreements without the landlord’s consent.
Common rights and live registers
The register held by the County Council is a register of all registered rights of common on each common land (CL) unit as detailed in Registering Common Land.
It is not a comprehensive register of who owns the common rights except for rights held in gross (these are rights not attached to a particular holding and can be traded). So, in preparing to draw up an agreement, a live register should be drawn up using the commons register combined with local knowledge and research.
Additional sources of information are:
the Land Registry, but beware as not all dominant tenements or tenancies are registered
electoral role when there are rights attached to cottages
audit sheets prepared by the Rural Payment Agency (RPA) for the Basic Payment Scheme (BPS) and the HFA scheme.
Common rights of grazing relevant to agri-environment schemes include sheep, cattle and horses/ponies. Be careful not to ignore one of these just because they are not currently grazed since Natural England or the landowner may seek to reintroduce a different species in future.
Also sheep rights should be adequately defined, separated into ewes, ewes with followers and hoggs since sometimes hoggs are allowed in addition to ewes but, in other instances, the given number of ewes includes hoggs. Similarly cattle, ponies and horses may include followers or not and a follower may require definition.
A live register should include the following:
Name of current owner and/or tenant of the rights
Number of each type of animal that can be grazed
Where there are several types of stock allowed (e.g.rights for equivalent numbers of sheep/cattle/horses), it is useful to convert them to equivalent sheep grazing numbers (or the dominant type of grazing livestock on the common) using an agreed conversion formula
Land to which the rights are attached, if any
Are the rights dual registered on another common or commons; if so, are they already in an agri-environment agreement?
Proof of title where needed.