STATUTE LAW REVISION: SIXTEENTH ... - Law Commission

Inclosure under other Acts practically ceased after 1845. 7 Now, more than a century later, it
would not be realistic to contemplate the rectification of a defective, incomplete
or unexecuted inclosure or the revival of the long-dead commissioners’ powers.
Accordingly as well as the machinery for inclosure under the Acts of 1845 to
1868, and all the supplementary and ancillary provisions which are not required
for other purposes, these provisions for the rectification or pursuance of the
failed and defective inclosure ambitions of the even more distant past are also
proposed for repeal.
41 Maintenance “for ever” of fences and other works
6.1 Sections 61, 68, 72, 73 and 83 of the Inclosure Act 1845, and section 4 of the
Act of 1848, contain provisions which purport to lay upon certain persons and
public bodies ever-continuing duties of repairing, cleansing and maintaining
ponds, ditches and other works, and of maintaining private roads and fences,
which were constructed in accordance with the inclosure orders. To that extent
they cannot presently be proved to be entirely obsolete although in most cases if
not all they probably are. Similar provisions in local or private Acts have
attracted the attention of conservationists and the Press. At present they are not
proposed for repeal. The sections are however cluttered with obsolete provisions
about the inclosure process and the question of how to clear these away has had
to be considered carefully. The course proposed, which is the usual one and
consistent with the other proposals, is to excise all the “dead wood”, leaving
behind the provisions which arguably are still viable. Although this approach has
the disadvantage in some cases of losing the context in which the remaining
provisions were originally set, it does appear to be less unsatisfactory than other
available options which could involve the drafting of complex savings provisions
in the legislation. Moreover, it has the merit of consistency with earlier repeals of
the legislation.
42 Extent of the proposed repeals in the Inclosure Acts 1845 to 1868
6.1 It may be wondered why the repeals proposed do not sweep away the Inclosure
Acts in their entirety. Perhaps the most important reason for this is that in some
cases, such as the continuous maintenance of works provisions mentioned
above, it cannot readily be ascertained whether it would be safe to repeal these
provisions completely. Another example are the provisions relating to field
reeves 8 of existing regulated pastures in sections 117 to 120 of the 1845 Act. 9 At
first sight it seemed unlikely that the provisions were still practicable. However
7 The public general Act of 1836, 6 & 7 Will.4 c.115, was repealed by the Commons Act
1899, 62 & 63 Vict c.30. The expression “local Act of inclosure” is widely defined by section
167 of the 1845 Act (interpretation) but there does not seem to have been one of those,
ordinarily so called, since the Gedney Inclosure Act 1873, c.ccxiii, for the parish of Gedney
in Lincolnshire. There were perhaps only seven ordinary local Acts of inclosure after 1845.
8 It appears that field reeves were persons elected under section 117 of the 1845 Act by the
assembled owners of the stints or rights of pasture at their yearly meetings. Apparently
they usually held their offices for a year. They were remunerated from rates raised by the
owners under section 120.
9 Sections 113 to 115 of this Act contain superseded provisions for the new-regulation of
pastures, a subject which will be more conveniently explained in connection with the
Commons Act 1876 below. So far as these sections are obsolete they are proposed for
repeal by this Bill.
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