Working draft RULES FOR BRENDON COMMON UNDER SCC 2014 3rd Draft
The 2nd draft was considered at the 2nd BCC Meeting on 15th July 2014 and is in blue,
notes/points made at the meeting are in red, additional material added post 15th July is in
black.
Background
The Commons Act 2006. Pt II Para 31 sets out the functions of a commons council at (1) at
(3) the particular functions include (a) making rules relating to agricultural activities, the
management of vegetation and the exercise of rights of common on the land for which the
council is established and (b) making rules relating to the leasing or licensing of rights of
common. In addition (4) explains that rules may have the effect of (a) limiting or imposing
conditions on the exercise of rights of common or the exercise of rights to use the surplus of,
the land for which the council is established.
Guidance in the Explanatory notes to the Commons Act states at Para 169 and 170
169. A council might be given the function of making rules relating to the leasing and
licensing of rights of common. This would permit the council to control the use of rights of
common by persons other than the commoner entitled to the rights. For example, controls
imposed where holders of common rights wish to lease out their rights to others on the
common, or if they are active graziers, to take on more rights for significant periods of time.
Any local rules made by a council would take precedence over any regulations made under
paragraph 2 of Schedule 1 to regulate the leasing or licensing of rights of common generally
(see paragraph 70), but could apply to any arrangements made by the owner of the common
to lease or licence any part of the surplus grazing to a third party, since the owner’s right to
use the surplus grazing is not a right of common.
170. Subsection (4) enables a commons council to make rules which have the effect of)
limiting or imposing conditions on the exercise of rights of common, or the exercise of the
rights of an owner to use the surplus of a common, The intention is that all those exercising
rights, whether through rights of common or to the surplus, should be subject to the same
rules. For example, a commons council might enter into an agri-environmental agreement
that might require a period where no grazing takes place on the common. In such case all
those grazing animals on the common would be required to remove them for the specified
period.
These powers of making rules are seen in the Establishment Order under the section on
Functions of the council at (d) making rules relating to_
(i)
Agricultural activities, the management of vegetation and the [exercise of] rights of
common on the commons;
(ii)
The leasing and licensing of rights of common.
Further under Rules: further provision
1. Rules under article 5(a)(i) may in particular include provision—
(a)
limiting periods when animals may be turned out onto the Common;
(b)
limiting the number of animals which may be turned out onto the Common during a
specified period (for example, by restricting each commoner with rights to graze animals
from exercising more than a specified proportion of those rights during the specified period);
(c)
(d)
restricting or prohibiting the turning out of entire animals;
prohibiting the turning out of animals by anyone not having a legal right to do so;
(e)
about measures to be taken to control disease among animals on the Common,
including temporary prohibition of the grazing of animals on the Common;
(f)
about the supplementary feeding of animals on the Common;
(g)
about standards of husbandry to be followed by persons keeping animals on the
Common; and
(h)
requiring from any person to be entered in the register maintained in accordance with
article 8, the information described in that article.
For the procedure for making, amending and revoking rules; see Article 7 of the
Establishment Order. The Council is required at least one month before applying to the
Secretary of State for confirmation of the rules to :(a) publish notice of its intention to apply for confirmation together with—
(i) details of the website on which publication is required under paragraph (ii), in one or
more local newspapers circulating in the area of the Common; and
(ii) a copy of the rules, on an appropriate website;
(b) give notice in writing of its intention to apply for confirmation, together with a copy of
the rules, to—
(i) every commoner whose name and address appears in the register maintained in
accordance with article 8; and
(ii) the owner of the Common; and
(c) give notice in writing of its intention to apply for confirmation to, and deposit a copy of
the rules with—
4
(i) the proper officer of Devon County Council,
(ii) the proper officer of North Devon District Council,
(iii) the proper officer of the Exmoor National Park Authority, and
(iv) the chairman of each parish council and parish meeting within the area of the
Common.
(4) The Council must provide to any person who so requests a copy of the rules, before or after
confirmation, on payment of a reasonable charge.
(5) If any written representations are served on the Council before it applies for confirmation of
the rules, the Council must send a copy of the representations to the Secretary of State with the
application for confirmation, and the Secretary of State must take account of any such
representations in deciding whether to confirm the rules.
(6) The Secretary of State may confirm, or refuse to confirm, any rules submitted under this
article for confirmation, but reasons must be given to the Council if the Secretary of State refuses
to confirm them.
(7) When rules have been confirmed by the Secretary of State, they come into force either—
(i) one month after the date of their confirmation; or
(ii) upon such later date as the Secretary of State may determine.
(8) When rules have been confirmed by the Secretary of State, the Council must, at least 14
days
before the rules come into force—
(a) publish notice of their confirmation, together with a copy of the rules and notification of
the date on which they are to come into force, on an appropriate website;
(b) give notice in writing of their confirmation and the date on which they are to come into
force to, and deposit a copy of the rules with—
(i) the proper officer of Devon County Council;
(ii) the proper officer of North Devon District Council;
(iii) the proper officer of the Exmoor National Park Authority; and
(iv) the chairman of each parish council and parish meeting within the area of the
Common; and
(c) give notice in writing of their confirmation and the date on which they are to come into
force, together with a copy of the rules, to—
(i) such persons (if any) as it considers represent the interests of commoners not
included in paragraph (ii);
(ii) every commoner whose name and address appears in the register maintained in
accordance with article 8;
(iii) the owner of the Common; and
(iv) the chief constable of Devon and Cornwall Police.
Preamble should set out the ‘command structure of rules in relation to ES and ES IMA
‘Command structure’
The rules are prepared under article 5(d) (i) of the Establishment Order and these rules are
the means whereby the Council carries out its functions. Prior to the Establishment Order the
the Common was subject to the ‘rules’ set out in the Internal Management Agreement (IMA)
being part of the ES Agreement. The rules are the underlying form of regulation but during
the term of the ES agreement the IMA and any agreed amendment to that IMA take
precedence over the rules.
BRENDON COMMONERS' COUNCIL
DRAFT RULES AS PREPARED UNDER
SECTIONs 26, 31 & 34 of the Commons Act 2006
1. Rules Relating to Funding the Council.
1.1.
The Council may raise money to meet its operating costs through Environment
Stewardship funding or other support and through levies (fees) on the exercise of
rights of common or annual subscriptions. Such fees may take the form of a flat or
variable rate. For example, for commoners, a variable rate may be calculated
according to the number of common rights, the extent to which they are exercised
and types of right in common held.
1.2.
Any such levy / fee agreed from time to time by the Council will be reviewed
annually and published on the website and is payable immediately on demand or may be
deducted from distributions of Environmental Stewardship or any other distribution made
by the Council to commoners. Failure to pay any levy / fee may lead to suspension of
rights held and suspension from the Council.
2. Rules relating to Commons Register
2.1. The Council will maintain a ‘live register’ relating to common rights however all
persons having rights must ensure that the Commons Register (currently held at
Devon County Hall) is correct in respect of their entry and must upon sale, transfer
and /or receipt of units contact Devon County Council in accordance with Regulation
44 of the Act and the Secretary of the Council/ Keeper of the Register, in accordance
with article 8 of the Establishment Order and incorporating the information set out in
that article.
2.2. Any person entered in the live register will be required to provide the information
required within 14 days (see article 8 of the Establishment Order) upon demand by the
Secretary / Keeper of the Register. Any person entered on the Live register must
notify the Secretary of the Council / Keeper of the register of any changes of
information (see article 8(3)) without delay (no later than 14 days of any change)
whether demanded or not. Insert timescale
2.3. In the event of a change of ownership or status requiring an apportion of rights
the apportionment must be carried out by or agreed by the Secretary of the Council /
Keeper of the Register any person making such changes will be required to pay
reasonable cost of that apportionment or interpretation of rights etc carried out by the
Secretary / Keeper of the Register.
2.4. Any person entered in the live register or member of the public may upon
application to the Secretary of the Council;a). Make an appointment to inspect the register without charge (Article 8 (4)) and
make copies or take extracts, or
b) On payment of a reasonable charge, be provided by copies by the Council
3. Council entry into ES Agreement
3.1 The Council may as part of the exercise of its functions enter into Environmental
Stewardship or other agri-environment agreement and will assume responsibility for
delivering its terms and for receiving and distributing payments
3.2. No person shall graze in contravention of any agreement for the management of the
common made between the council and Natural England (or any successor body) under
the auspices of an Environmental Stewardship agreement or similar. No person shall
breach the terms of an Internal Management Agreement or other deed made by the
council for the regulation of an Environmental Stewardship agreement or similar.
3.3. The Council shall for the period that the Common is entered into an
Environmental Stewardship Scheme and for any period thereafter as agreed with the
Landowner(s) assume the landowners responsibilities in respect of management of
the vegetation of the Common.
4. Rules relating to Limiting Periods when animals may be turned out on the common
4.1. The Council may from time to time regulate the periods that animals may be
turned out on the Common and the types of animals that may be grazed. (for example
equines limited to (delete- registered insert -recognised) Exmoor Ponies only see note
below). This maybe in accordance with an Environmental Stewardship Agreement,
Directive from Natural England or successor body or disease control measure, (see
rule 8), or such other reason requiring Council action. Designated periods will be
known as restricted or prohibited periods
Because of the current difficulties with Exmoor pony registration it is suggested that
the term recognised be placed instead of registered.
4.2. The Council may from time to time limit the number of animals which may be
turned out upon the common during a specified period (for example, by restricting
each commoner with rights during the specified period): This maybe in accordance
with an Environmental Stewardship Agreement, Directive from Natural England or
successor body or disease control measure or such other reason requiring Council
action.
4.3 The Councils directions upon limiting stocking (unless part of an Environmental
Stewardship Agreement or similar) shall be published as Notice of Limitation and will
be published on the website.
5. Rules relating to Grazing / Livestock Husbandry
Prohibition of grazing the common by those not having rights or being a rights holder
having not registered those rights
5.1. No person shall let graze (de pasture) on the commons any animal in respect of
which he does not have an entitlement or if entitlement is held for which he has not
registered the intention to graze with the Council.
Rules relating to assigning and letting of rights
5.2. No person having the right to license another person or arrange for any other
person to graze animals on the commons shall enter into any such licence or
arrangement without giving to the Secretary of the Council notice of the numbers of
such animals involved in any such licence or arrangement and the duration of the
agreement. Note that the IMA does allow this. Suggest time limits (See also Para 7
below)
5.3.. No person shall allow any animal to be grazed on the commons without taking all
reasonable steps to make sure that from the date of that animal's introduction it is
hefted or leared or flocked in accordance with the custom and practice of Brendon
Common as approved from time to time by the Council.
5.4. This section requires revision due to changed statutory requirements. No person
shall allow to be grazed on the commons any cattle or ponies exceeding the age of 12
months or sheep exceeding the age of 6 months which are not permanently marked in
a form that is readily visible for the purpose of identifying their ownership. Sheep
should have a permanent incised earmark readily discernible together with a paint
mark. All animals grazing the common must be marked in accordance with the
appropriate identification, registration requirements. (Delete-The Council may waive
the requirement of such permanent marking on application of the person grazing prior
to the commencement of such grazing where the duration of the grazing is to be a
single period of less than 3 months.
For the purpose of this Regulation the application either of paint or of an ear-tag to a
sheep shall not be regarded as forms of permanent marking.-deletion ends)
Every person so grazing an animal shall one month prior to first grazing any such
animal send to the Secretary of the Council a diagram and a description of the mark
adopted for this purpose (to include the colour and position of any paint marking).
The Council may require a person to alter or vary any mark which it considers cannot
adequately be distinguished from that employed by another person grazing animals
on the commons, and thereafter such person shall ensure that all animals grazed by
him are marked in accordance with such requirement.
5.5. No person shall graze on Brendon Common any animal which he knows or has
reasonable cause to believe is suffering from any disease which is a notifiable
disease for the purpose of the Animal Health Act 1981 or any re-enactment or
amendment thereof and a person who grazes on the commons an animal which is or
which appears to be in a healthy condition and who subsequently discovers or is
informed that the animal is suffering from such a disease shall so soon as is
reasonably practicable and in any case within 48 hours arrange for the removal of that
animal from the commons and for that animal to be tested. If the results of such a test
confirm that that animal is suffering from such a disease that person shall undertake
an inspection to ensure that other stock belonging to him and similarly grazed is not
affected by such a disease. Further, if any animal is discovered to be suffering from a
notifiable disease the person by whom it was grazed shall within 48 hours of such
discovery notify the Secretary of the Council thereof.
5.6. No person shall graze on the commons any animal which has ceased to be thrifty
and the Council may by written notice require such person to remove from the
commons a grazed animal which the Council considers to have ceased to be thrifty or
which would suffer unduly if allowed to remain grazing. That person shall remove
such an animal within forty-eight hours of receipt of such a notice in default of which
the Council may take steps to remove it.
Grazing and Prohibited periods
5.7. No person shall graze a prohibited animal on the commons or a designated unit
thereof during a prohibited period. A prohibited period shall be a period designated
by the Council in accordance with advice concerning animal health or other matter or
because of any outbreak of infection or of notifiable disease or in response to such
locally prevailing circumstances as cause the Council to consider that the commons
should not be stocked during that period and may apply either to all the commons or
to such unit or units thereof as the Council decides. A prohibited animal may be an
animal of any description as the Council may decide. When the Council has
determined that a prohibited period is necessary and the appropriate extent thereof
the Secretary of the Council shall inform all active graziers whose grazing is affected
by the prohibition notice of the prohibited period and the prohibited animal or animals
together with the reason for the prohibition.
5.8 The Council may require active-graziers to prepare disease control plans (in
accordance with the requirements of the AHLVA or similar body) and to provide
copies of the approved plan to the Council Secretary.
5.9 The Council may upon giving reasonable notice require active-graziers to gather
stock upon the common for the purposes of assessing stocking numbers and
identification, disease control or for dipping or such other routine purpose.
Prohibited Animals
5.10. No person shall graze on the commons:
a) A bull over the age of six months or a shod horse or a shod pony.
b) A stallion or other animal which the Council considers to be a danger to any person
or animal. Only Recognised Exmoor Pony Stallion(s) may be permitted to graze the
commons and the period of grazing may be restricted. This provision allows the use
of stallions on the Common but it was suggested that this must be a
registered/recognised Exmoor Stallion and that the placing of any stallion must be by
prior approval of the Council
c) A ram or ram lamb between the delete - 31st day of July insert – The second week
in August Suggestion that Mid August be the date of start of ram free period and the
10th day of November in any year
d) Any animal prohibited as part of an Environmental Stewardship Agreement or
similar.
Supplementary feeding of grazed animals
5.11. No person shall supplementary feed animals grazing the common, except where
such supplementary feeding is allowed on welfare grounds or has been permitted as
part of an Environmental Stewardship scheme and or authorised by the Council.
Removal of fallen stock
5.12. Any person shall arrange without delay for the removal from the surface of the
commons of the carcass of any commonable animal belonging to him of for which he
is responsible provided that it is possible to obtain access to that carcass. If he is
informed of such a death by the Secretary of or by a reeve appointed by the Council
or by a member or the Secretary of the Council and is instructed to remove that
carcass he shall arrange for its removal as soon as is reasonably practicable
following his receipt of such an instruction.
Actions of a Reeve in relation to grazing
Suggested that in order to detain animals there has to be a pound and there are
implications with regard to animal movements and disease control
5.13. (i) Any reeve appointed or other person duly authorised by the Council may
remove from the commons and detain any animal grazed there in contravention of
any of the foregoing regulations.
(ii) During the detention of any animal so removed from the commons (to a location
agreed by the AVHLA or similar body), the Council shall arrange for it to be properly
fed, watered and, if appropriate, sheltered and to receive any treatment, veterinary or
otherwise, as seems to the Council reasonably necessary for its well-being.
(iii) As soon as is reasonably practicable after removal from the commons of an
animal in accordance with this Regulation the Council shall arrange for notice of its
detention to be given to the owner of that animal. Such notice shall inform the owner
where the animal may be collected. Unmarked animals may be disposed of if the
ownership is untraceable within 10 days or earlier if welfare/ animal health is an issue.
(iv) Before an animal is returned to its owner the Council shall be entitled to charge
and receive from the owner of the animal the cost of its detention, including the cost
of its maintenance and of any treatment the animal has been given during its
detention.
(v) If within ten days of giving notice of its detention to the owner of an animal that
animal is not collected by the owner the Council shall be at liberty to sell the animal or
to dispose of it how the Council sees fit and deduct from the proceeds of sale (if sold)
all its costs and expenses incidental thereto before remitting the balance to the
owner; if disposed of the Council shall recover from the owner all costs relating to the
detention of and disposal of the animal.
(vi) Where an animal is detained the owner of which the Council is unable to ascertain
it shall advertise that detention in a notice appearing in two consecutive weeks'
editions of a local newspaper The Council shall continue to keep the animal safely
and if at the end of seven days from the date on which the notice was published
for a second time no enquiry from the owner in respect of that animal has been
received by the Council it shall sell that animal and deduct from the proceeds of sale
all its costs and expenses incidental thereto. The Council shall then retain the balance
of the sale money for six months and if in this time it is not reclaimed by a person
who satisfies the Council that he was the owner of the animal so sold the Council may
include that balance within its income for that financial year.
Disputes regarding grazing
5.14. The Arbitrator to be appointed in event of a dispute to determine an appeal by an
owner or his tenant or other person against the number of animals he may graze as
prescribed in a Limitation Notice issued by the Council under Regulation 4 above
shall be appointed annually by the President of the Royal Institution of Chartered
Surveyors. Unless both parties agree to submit written representations to him the
Arbitrator shall arrange a hearing at which the appellant and a representative of the
Council may address him orally and shall before he makes an award make an
inspection of that part of the commons to which the dispute relates. The costs of, and
incidental to, the arbitration and award shall be in the discretion of the Arbitrator who
may direct by whom the costs or any part thereof are to be paid.
6. Protection of the Common
6.1. No person whether or not having a right registered under the Commons
Registrations Act 1965 or right or privilege having a similar subject matter as rights of
common (including rights of grazing deriving otherwise than from rights of common)
shall do anything or cause or allow any act to be done which in the opinion of the
Council shall cause the natural beauty of the commons to be damaged.
6.2. The Council may require the removal of stock from the commons or from a
particular part of the common where stock are being grazed or fed in contravention of
any Code of Guidance approved by the Council or in order to prevent or limit damage
to the commons.
6.3. No person shall burn moorland or cut bracken unless authorised to do so by the
Council (in accordance with an Environmental Stewardship agreement or similar).
7. Rules relating to transfers of Rights
7.1. No Commoner shall allow the use of his right or part of his right by any other
person, unless he leases to that person on a full agricultural tenancy (FBT or AHA)
the proportion of his holding bearing the same relation to his entire holding as the
part of his right does to his whole right.
7.2. Any active grazier wishing to lease or licence another to use his grazing units
may do so to another active grazier for a maximum period of 12 months provided that
both they and the grazier renting the units serve written notice upon the Secretary of
the Council before such an arrangement has commenced.
7.3. Any Active Grazier wishing to lease or licence his grazing rights to another for
more than 12 months of wishing to do so for a period of time following the expiry of a
permitted period of 12 months may in exceptional circumstances apply to the Council
for permission to do so.
7.4. Any Active Grazier otherwise leasing his grazing units or authorising another to
use them for a period of longer than 12 months unless prior permission has been
obtained under sub-clause 3b hereof shall cease to become and be paid as an active
grazier.
8. Rules relating to change of status on live register between Active Grazier and Non
Active Grazier
8.1. Commoners may not change status between active and in active grazier while the
Common is part of an Environmental Stewardship Agreement or similar save by the
method set out in the Internal Management Agreement or similar accompanying that
agreement.
8.2. If the Common is out of Agreement and the Council (whether the Council
continues to assume the landowners powers regarding management of vegetation or
not) commoners may only change status (unless by force majeure) by notice in
writing given to the Secretary of the Council 1 month prior to the Council AGM, and
upon confirmation by the Council that the proposed change is agreed. The Council
may require a transition period of up to 18 months before the change if agreed can
take effect.
9. Rules relating to boundaries
9.1 All boundaries to the common (including gates, flood gates or other boundary
feature) must be maintained in a stockproof condition. The Council may require repair
to stockproof condition by service of a written notice allowing up to 14 days in which
to affect the repair. In the event of failure to repair within the notice period given, or in
the case of inadequate repair or emergency the Council may carry out essential repair
and recover the reasonable associated costs from the boundary owner.
9.2 Boundary gates to the common must not be tied back or ‘back grazing,’ (grazing
the common in conjunction with adjoining inbye ground), carried out.
10. Use of the common and impact upon the agricultural activities, the management of
vegetation and the exercise of rights of common on the Common.
10.1. No person may use the common otherwise than in accordance with the rights
granted by the Deed of Declaration made by the owners under Section 193 of the Law
of Property Act 1925 and the relevant byelaws and rights under the CROW Act 2006.
In particular no person shall use the common in any way that adversely impacts the
exercise of rights of common, the agricultural activities or management of the
vegetation ; (for example to drive a vehicle on the common, to camp, to light a fire, to
allow a dog to worry stock, to disturb grazing animals etc)
11. Penalty for breach of rules
11.1. Any person who contravenes any of the foregoing Regulations shall be guilty of
an offence and liable on summary conviction to a fine not exceeding level 3 on the
standard scale and in the case of a continuing offence to a further fine not exceeding
£40 for each day during which the offence continues after conviction thereof.
12.. Interpretation Acts application
12.1. The Interpretation Acts 1889 to 1978 shall apply to these Regulations as they
apply to any Act of Parliament and where the context so admits Section 2 of the Act
(the Interpretation Section) shall apply to these Regulations and in the event of
conflict the latter shall prevail.
13. Charges for copies of rules
13.1. The Council will provide any person who so requests a copy of the rules, on
payment of a reasonable charge. The charge to be set by the Council, from time to
time, and published on the Council Website.
Additional Rules require drafting in relation to:Clearing the Common for dipping or other purposes
Rules relating to Boundaries
Dog worrying
Note should be made of the Byelaws under Section 193 LPA1925