STATUTE LAW REVISION: SIXTEENTH ... - Law Commission

common so far as possible, and the commissioners had to consider, as well as
the private rights, the question whether the application would be for the benefit of
the neighbourhood. The Act does not define inclosure, nor regulation, but there
were two main purposes of regulation, the “adjustment” of the common rights
and the “improvement” of the common. The main thought behind regulation was
that the unrestrained common rights of pasturing stock, digging turfs and so on
were an obstruction to “improvement” and these had to be modified or abolished
if necessary. The Act did however explain “improvement” as including draining
and other agricultural preparations, planting of trees and other beautification of
the common, making byelaws and regulations to prevent nuisances or for
keeping order, general management, and the appointment of conservators. The
general aim was to moderate or eliminate the common rights which were
injurious to the general body of the commoners or the proper cultivation of the
common.
6.3 It has been regretted that there were only thirty-six applications for regulation
under this Act (the last being in 1919) the writer 15 suggesting that one reason for
the Act’s ultimate failure was the condition, in section 7, that the commissioners
must consider whether the application will be for the benefit of the
neighbourhood, an objective which is emphasised in the preamble. However the
main problem was, he thought, the obtaining of the consents of persons
representing one third of the value of the interests in the common as required by
section 2 and section 12 (rule 5). Although many people may share the regret
that the Act proved to be impracticable, there is little point in the continuance of
old legislation which has no practical utility. It may be noted that there is other
legislation mentioned by the same writer 16 which provides for the regulation of
commons, although it seems that this too is little used. It is proposed that the
1876 Act should be repealed so far as it provides for regulation or inclosure of
commons. However, so far as it provides for the management of regulated
pastures and for purposes other than inclosure, no repeals are proposed. These
proposals are supported by the conclusion of the Royal Commission on Common
Land 1955-1958 that “lacking local vitality the whole system which legislation
over the last century aimed at preserving has tended to ossify instead” 17 ,
although they did say in the next paragraph that there were at that time some
well-managed commons. It seems that they may have felt that commons
differed too much to be collectively governed by general legislation of the 19th
century type. 18
44 Extent of the proposed repeals in the Commons Act 1876
6.1 There are technical reasons for the limited extent of the proposed repeals of the
Commons Act 1876. As often happens in statute law revision work, problems
have arisen over the legislative draftsman’s practice of applying in new legislation
15 Sir Ivor Jennings, loc. cit. para 52.
16 Loc. cit. paras 51, 53. These include the Metropolitan Commons Acts 1866 to 1878, the
Commons Act 1899 and the Commons Act 1908. They are not within the present
proposals.
17 Cmnd 462, para 163.
18 There is also an observation in 6 Halsbury’s Statutes (1992 Re-issue) 987 recording that
the procedure in sections 9 to 12 of the 1876 Act is “thought to be obsolete”.
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