Statutory Models of Governance
There are six main statutory models of governance:
Inclosure Awards
Regulated pasture (see FS1) created before the Inclosure Act 1845 is subject to its own individual inclosure award which may include a number of management provisions to assist the communal graziers. These provisions can only be ascertained by referring to the specific award which may be held in the local County Records Office or in the National Archives, Kew. Regulated pasture created under the Inclosure Act 1845 is subject to statutory management powers.
These powers cover matters such as the times stock are allowed to be turned out, the maintenance of fences and ditches, the making of byelaws, the regulation of stints and the appointment of a reeve. They can be exercised by a majority in value, of those people attending the AGM for the pasture. The inclosure award will also specify the area covered by it and allot stints, specifying the number and type of animal and the period of the year during which the right can be exercised. This is a historical model of management still in operation on some commons but not an option for commons looking for new management models.
Metropolitan Commons Schemes of Management
The Metropolitan Commons Act 1866 allowed for the promotion of a scheme for local management of metropolitan commons (those within the metropolitan police district) by the 3 Commons Toolkit FS12 Governance owner, commoners, local authority or 12 or more inhabitants of the parish. The scheme could allow for matters such as the expenditure of money on drainage, levelling and improvement of the common and the creation of by-laws. There are currently 33 schemes of management on commons including Clapham, Barnes, Streatham and Blackheath.
Boards of Conservators
The 1876 Commons Act provided for the regulation of commons through by-laws enforced by boards of locally appointed or elected conservators. An application for a provisional order could be made to the Secretary of State by parties representing one third in value of the interests in the land affected. The order could allow for a once and only adjustment of rights (not relevant since the 1965 Commons Registration Act – see Registering Common Land) and a scheme of improvement allowing for matters such as drainage and manuring, planting trees, the making of by-laws, general management and the appointment of conservators. The scheme has to “benefit the neighbourhood”.
A total of 36 such orders were adopted all with Boards of Conservators. Many of these are now obsolete although active Boards include East Stainmore in Cumbria, the Clent Hills in Worcestershire and Burrington Common in Somerset. Although still technically available as a management option the provisions of the 1876 Act have largely fallen into disuse and the last provisional order to be adopted was in 1919. The 2006 Act provides for variation or revocation of model schemes where a Commons Council has been established.
The full provisions of each order are held in the local County Records Office or in the National Archives, Kew.
Local Authority management under the 1899 Commons Act
The 1899 Act provided local authorities with the means to introduce model schemes of management on commons covering matters such as drainage, fencing quarries and ponds, preserving vegetation, planting trees and shrubs and conserving objects of historic interest. The schemes had no control over agricultural matters. These schemes do not require the consent of the Secretary of State and are thus a relatively simple model to adopt. The model regulations are periodically revised; the current version dates to 1982 although a new model is expected to be adopted in the near future (2010).
The regulations allow local authorities to make and enforce byelaws. However, the proposed schemes can be vetoed by the owner of the common or by one third of the rightholders. Commons in 1899 management schemes must allow local inhabitants free access and a right to play games. There are approximately 260 commons managed by model schemes under the 1899 Act and this remains a current option for management, although the 2006 Act provides for variation or revocation of such regulation where a Commons Council has been established. Examples of local authority managed commons include Austenwood Common in Buckinghamshire and Caldbeck Common in the Lake District.
Commons governed under Local Acts
Specific legislation has established management bodies for a number of areas of common land which are governed by their own statutory rules and regulations. Examples include the Dartmoor commons governed by the Dartmoor Commons Council which was established by the 1985 Dartmoor Commons Act and the New Forest commons which are managed by the Forestry Commission and Verderers of the New Forest under various New Forest Acts. Commons Toolkit FS12 Governance
Commons Councils
The 2006 Commons Act provided for the establishment of statutory commons councils with powers to manage the agricultural activities, vegetation and rights of common on common land. The provision was a response to the ongoing difficulties in achieving consensus over the management of commons and the impact that this was having on biodiversity and landscape.Commons Councils are optional; they can be established for individual commons or for large groups of commons and can run in tandem with existing voluntary associations, which may continue to have a day to day role in the management of the common.
A Council is set up by an establishment order made by a Secretary of State. It is necessary to obtain substantive support to the proposal from those with a legal interest in the common; this includes
andowners, tenants and occupiers. Particular reference must be given to those entitled to exercise rights of common. It is not necessary to obtain unanimous support and a council may be established in the face of opposition from a few individuals or even classes of interest. It is not essential to have the landowners support to the proposal, although it is clearly desirable. Likewise, if the landowner is unknown this will not prevent a council from being established although it will be necessary to show that efforts have been made to contact all those with a legal interest in the common.
Each establishment order is unique to the circumstances of the common(s) to which it applies but there is a standard constitution covering matters such as membership, the keeping of records, the appointment and conduct of members, voting procedures and the preparation of accounts.
A Council has the power to make rules which are legally binding on all right holders even those who were not in favour of its establishment. These rules can cover issues such as the marking of animals on the common, times of turn out, the maintenance of a live register, the removal of unlawful encroachments or the removal of animals with no legal right to graze. The Council can also enter into agreements, employ staff, acquire or dispose of land, prepare management plans and raise money.
A Council can take action against an individual in breach of the rules either by applying for a county court order requiring that they comply or by treating it as a criminal offence whereupon the offender, if convicted, will be liable to a fine.
An establishment order for a Council can be revoked if it is clear that the council has ceased to operate or is failing to discharge its duties effectively or not paying sufficient regard to public interest when doing so.