Non-Statutory Models of Management
Commoners and landowners who wish to establish a system of governance but do not feel that a Commons Council is appropriate have a number of non-statutory or voluntary options available. The main models are:
Manorial Courts
Historically, manorial courts played a key role in the management of common land but their powers were eroded throughout the 19th and 20th centuries. The remaining courts have no legal jurisdiction but are able to administer the customary management of commons such as stipulating the time of year that stock may be turned out, dealing with encroachments and fining commoners who exceed their rights. However, as they have no right to hear and determine legal proceedings, their powers are very limited. A number of such courts remain active, examples being the Danby and Fylingdale Courts Leet in North Yorkshire and the Spitchwich Courts Leet and Baron on Dartmoor.
Voluntary Associations
These are informal groups, usually with officers, a constitution and set of rules for the common. It is usual for a voluntary association to allow all those with a legal interest in the common to become a member, including the landowner.
A voluntary association is a low cost option of governance; it has no legal powers over commoners and relies on good will and the co-operation of commoners in the interests of all. It has no power to bind a dissenting minority. An association can become a point of contact for others with an interest in the common and for stakeholders such as recreational user groups and the local community.A small number of voluntary associations have limited statutory powers obtained under the 1908 Commons Act. These relate only to the times and conditions for the turning out of entire animals on the common. Due to the need to apply for Secretary of State approval, very few commoners groups have adopted this procedure. This right is still available although the 2006 Act includes a right to amend or revoke such regulations where a Commons Council has been established.
Federation or umbrella common groups
In recent years a number of umbrella common groups have been established. These are informally constituted groups which represent the interests of commoners over a wide geographic area usually containing a considerable area of common land and CL units. Federations have largely been established to complement the day to day management work of associations. Among their main aims is to provide a collective representative voice for commoners of the area and to disseminate information to associations and other commons bodies, as well as improving public awareness and understanding of common land. Examples include the Federation of Cumbria Commoners and the Gower Commons Group.
Legally constituted groups
These have no statutory authority but have been legally constituted. Most have been established to administer agri-environment agreements and payments on commons. There are a number of possible models available:
Groups bound by a Legal Agreement
These groups have no statutory powers but they do have the ability to enforce rules and regulations contained in a legal agreement on those individuals who are party to it. These legally constituted groups have become more common as agri-environment agreements on common land have increased and there has been a need to legally enforce the requirements of an agreement on all participants and give clear direction as to the division of payments. In many cases the legally constituted group is a sub group of a larger Association.
Company Limited by Guarantee including a Community Interest Company
As with a group established by a legal agreement the advantage of a Company Limited by Guarantee is that it has the power to impose collective decisions on all commoners who are members of the company. Companies have been set up to administer agri-environment agreements, in most cases the agreement is with the Board of Directors. Companies can also operate beyond the limits of the agri-environment agreement by arranging for works on the common and carrying out marketing and trading on behalf of the members.
As with a group established by legal agreement, the relationship between the Company and the existing Commoners’ Association can take a variety of forms. In some cases the Chair of the Board of Directors is the Chair of the Association whereas in others the two bodies work independently.
Trusts
This option has been used by Hamatethy Common on Bodmin to administer its agrienvironment agreement and payments. As with a company or legally constituted group, the Trust has the power to impose collective decisions on the beneficiaries - in this case the commoners. However, it is unclear what the legal obligations of the beneficiaries are to the Trustees in terms of delivering the agreement with Defra. The main disadvantage of a Trust is that the Trustees have unlimited liability.