STATUTE LAW REVISION: SIXTEENTH ... - Law Commission

the Department of the Environment, Transport and the Regions have expressed
doubts as to whether the provisions are obsolete. They are therefore not
proposed for repeal. 10 Yet another example are the provisions for the
management of poor’s allotments (that is, allotments for the labouring poor) in
sections 108 to 112 of the same Act, providing as they do for such matters as the
election of allotment wardens and the yearly letting of the allotments, divided into
small gardens, to the poor parishioners. Because it is not certain that these
provisions are obsolete, they are not proposed for repeal in the present Bill.
Another reason for not being able to repeal more extensively is that the
Department of the Environment, Transport and the Regions, who have assisted
greatly with this project, have asked for the repeals not to extend to section 147
of the 1845 Act. That section serves one of the ancillary or additional purposes
of the Act, providing for exchanges of lands when the exchange would be
beneficial to the owners, and is occasionally used by the Department for the
purpose, it is understood, of supplementing modern planning decisions. The
section appears to relate to sections 11 to 23 of the same Act, and to other
provisions. So these as well as section 147 are not proposed for repeal at
present.
43 Inclosure under the Commons Act 1876
6.1 As mentioned above, common land is private land and inclosure means the
extinction of common rights. Notwithstanding its disarming name and special
provisions, the Commons Act 1876 was really another inclosure Act, with some
new procedure and refinement. There have been no applications under the Act
since 1919 11 and much of it is now long overdue for repeal.
6.2 This Act empowered the inclosure commissioners to entertain an application for
inclosure of a common or parts of a common or for new regulation of a
common 12 if application were made by persons representing at least one third in
value of the “interests in the common as are proposed to be affected by the
provisional order”. 13 Under this Act the procedure which led to a provisional
order confirmed by Parliament was the same for regulation as for inclosure 14 but
in regulation cases the main aim was not inclosure of the land in severalty (i.e.
for the purpose of allotments) but rather the common land was to remain a
10 No repeals are proposed of any provision which might be useful for the continuing
management of existing regulated pastures by field reeves, to maintain the fences, control
the numbers of livestock and so on, as described in section 118, however incongruous with
modern reality the idea may seem at first to be.
11 Sir Ivor Jennings, App III (para 43) to the Royal Commission on Common Land 1955 to
1958 (Cmnd 462). Professor Sir Ivor Jennings KCB, QC was the Chairman of the
Commission.
12 The word “regulation” is ambiguous. It may refer to the imposition of a new scheme (as
intended here) or it may mean the implementation of an old one.
13 Section 2.
14 Loc. cit. para 52. Note that section 13 of the 1876 Act empowered the commissioners to
insert in any provisional order for the regulation of a common any necessary provisions for
carrying it out but that, when the confirming Act of Parliament had been passed, the
subsequent proceedings for carrying into effect the regulation of the common were to be
the same, so far as practicable, as they would have been in the case of an inclosure, and
the provisions of the Inclosure Acts 1845 to 1868 were to apply.
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