Severance

Severance

As previously mentioned, the Commons Registration Act 1965 required that all registered grazing rights should be quantified. Previously, appurtenant rights were usually quantified on the common law principle of levancy and couchancy. The move to a fixed number of animals resulted in a view that appendant rights could be severed from the land to which they were attached and thereafter be held in gross.

Prior to the 1965 Act the severance of unquantified rights from the land would have resulted in their extinguishment – they would simply have disappeared from the record and from practice. This was a significant issue at the end of the 20th century when large numbers of rights were severed from the land to which they were attached and became tradeable. The legal arguments behind this view are complex and case law was limited until 2001 when, in Bettison v Langton, the House of Lords held that a right to pasture a fixed number of animals was severable from the land to which it was originally attached and that, upon severance, it became a right in gross.

The Dartmoor Commons Act 1985 introduced legislation that prevented the severance of rights of common on Dartmoor but it was not until 2006 that this became the law elsewhere in the country. The prohibition on severance under the Commons Act 2006 took effect from 28 June 2005. The Commons Act does permit the temporary severance of rights of common by way of a lease or licence, provided that an order has been made by the appropriate authority or it is in accordance with the rules of a commons council. The Commons (Severance of Rights) Order 2006 (SI 2145) allows for the temporary severance of rights:

• by leasing or licensing the rights of common on its own for a period of two years or less and

• by leasing or licensing all or part of the land, to which the right of common is attached, without the right of common.

The 2006 Act also allows the permanent severance of rights where:

• the right is transferred on its own to either Natural England or a commons council or

• the appropriate national authority makes an order authorising permanent severance.

Attachment

According to common law, a right of common held in gross could not be attached to land. The Commons Act 2006 (s. 10) enables the owner of such a right and the person entitled to occupy the land (if different) to apply to register the right as attached.