The Brendon Commons Council Establishment Order 2013

Title and commencement E+W

1.  This Order may be cited as the Brendon Commons Council Establishment Order 2013 and comes into force on 1st January 2014.

Interpretation E+W

2.  In this Order—

“the 2006 Act” means the Commons Act 2006;

“active grazier” means—

(a)

in relation to the election and appointment of the first members of the Council, a commoner named in the list compiled under paragraph 2(a) of Schedule 1;

(b)

in relation to subsequent appointments, a commoner who is registered under article 8(1), or pursuant to an application under article 8(2), in the register maintained by the Council under article 8(1);

“the appointed day” means 1st April 2014;

“the Common” means the areas referred to in article 3;

“commoner” has the meaning it is given in the Standard Constitution;

“the Council” means the Brendon Commons Council established by article 3;

“owner”, in relation to the Common, means a person holding the estate of fee simple in the land in which the Common or any part of the Common is situated, and any reference to owning, or ownership of, the Common is to be construed accordingly;

“the Standard Constitution” means the constitution in the Schedule to the Commons Councils (Standard Constitution) (England) Regulations 2010(1).

Establishment of the Council E+W

3.  With effect from the appointed day a commons council, to be known as the Brendon Commons Council, is established for the areas of registered common land known as Brendon Common and registered as units CL168 and CL175 in the register of common land kept by Devon County Council under Part 1 of the 2006 Act(2).

Membership of the Council E+W

4.—(1) The Council is to consist of not fewer than five and not more than seven members, of whom—

(a) three are to be elected by the active graziers, from among themselves;

(b) one is to be elected by the commoners who are not active graziers, from among themselves;

(c) one is to be appointed by the owner of the Common, to represent the interests of the owner; and

(d) up to two may be co-opted by the Council.

(2) Elections and appointments of members of the Council under paragraph (1)(a) to (c) are first to be held and made before the appointed day and subsequently during the period of three months, beginning on 1st January and ending on 31st March, immediately preceding each biennial anniversary of the appointed day.

(3) Each member so elected or appointed is to hold office (unless the member resigns or dies, or paragraph (4) applies)—

(a) in the case of the first election or appointment, from the appointed day up to and including 31st March 2016; and

(b) thereafter, for two years from the 1st April next following their election or appointment.

(4) A person elected as a member of the Council pursuant to paragraph (1)(a) or (b) ceases to be a member of the Council if at any time during the period of membership that person ceases to be eligible for membership.

(5) Schedule 1 (election and appointment of members) has effect.

Functions of the Council E+W

5.  The Council has the following functions—

(a) managing agricultural activities on the Common;

(b) managing vegetation on the Common;

(c) managing rights of common on the Common;

(d) making rules relating to—

(i) agricultural activities, the management of vegetation and the exercise of rights of common on the Common;

(ii) the leasing or licensing of rights of common;

(e) preparing and maintaining a register of the grazing of animals on the Common in accordance with article 8;

(f) establishing and maintaining boundaries on land forming part of the Common or between the Common and adjoining land;

(g) removing unlawful boundaries and other encroachments on the Common; and

(h) removing animals unlawfully permitted to graze on the Common.

Rules: further provision E+W

6.  Rules under article 5(d)(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) restricting or prohibiting the turning out of entire animals;

(d) 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.

Procedure for making, amending or revoking rules E+W

7.—(1) Rules under article 5(d) are to be made pursuant to a decision of the Council and must be confirmed by the Secretary of State before coming into force.

(2) Paragraph (1) applies to any variation of such rules as it applies to the making of rules, save that a variation consisting solely of the revocation of one or more rules is not subject to confirmation by the Secretary of State.

(3) At least one month before applying to the Secretary of State for confirmation of the rules, the Council must—

(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—

(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.

(9) Where the Council is acting solely to revoke any rules made under article 5(d), not less than 14 days before the revocation comes into force the Council must—

(a) give notice in writing of the revocation, and the date on which it comes into effect, to—

(i) the Secretary of State;

(ii) the proper officer of Devon County Council;

(iii) the proper officer of North Devon District Council;

(iv) the proper officer of the Exmoor National Park Authority;

(v) the chairman of each parish council and parish meeting within the area of the Common;

(vi) such persons (if any) as it considers represent the interests of commoners;

(vii) every commoner whose name and address appears in the register maintained in accordance with article 8;

(viii) the owner of the Common; and

(ix) the chief constable of Devon and Cornwall Police; and

(b) publish notice of the revocation, together with a copy of the rules (in which any unrevoked rules are clearly to be distinguished from those newly revoked), on an appropriate website.

(10) The proper officers and other persons mentioned in paragraphs (3)(c) and (8)(b) must retain the deposited copy of the rules in accordance with section 225 of the Local Government Act 1972(3) and make it available for inspection and the making of copies in accordance with section 228(5) and (6) of that Act—

(a) in the case of paragraph (3)(c), until such time as the confirmation of the rules is either given or refused by the Secretary of State or, prior to their confirmation, the Council withdraws the rules; or

(b) in the case of paragraph (8)(b), for as long as those rules remain in force.

(11) In this article “proper officer” has the meaning given by section 270(3) of the Local Government Act 1972.

Register to be maintained by the Council E+W

8.—(1) The Council must prepare (and in so doing may rely on the lists prepared by the returning officer under Schedule 1) within one month of the appointed day, and maintain, a register containing the following information—

(a) the name and address of each commoner who at any time in the period of 12 months immediately preceding 1st January 2014 has exercised a right of common to graze animals on any area forming part of the Common;

(b) the name and address of any other person who at any time in the period of 12 months immediately preceding 1st January 2014 has exercised any other right to graze animals on any area forming part of the Common;

(c) the name and address of any other person who is a commoner and who applies to be entered in the register, together with a description of that person’s right of common and an explanation of that person’s lawful entitlement to exercise that right;

(d) as respects each person falling within sub-paragraph (a) or (b), or within paragraph (2)(a)—

(i) a description of that person’s right of common, or other right, to graze animals and an explanation of that person’s lawful entitlement to exercise that right;

(ii) the number, types and breeds of animals which for the time being that person grazes on that area;

(iii) the period during which such grazing takes place; and

(iv) the mark, tag or other method by which the ownership of those animals may be identified; and

(e) such other information as the Council thinks fit;

but in each case not including information as to any matter which is, or was, capable of being registered under Part 1 of the 2006 Act, but which has not been so registered.

(2) Any person who—

(a) has lawfully grazed any animal on any part of the Common during the immediately preceding period of twelve months, or

(b) proposes to exercise a right to graze any animal on any part of the Common,

may apply to the secretary of the Council to be entered in the register, giving such information as the Council may reasonably require.

(3) Any person who is entered in the register may apply to the secretary of the Council for the entry in the register to be amended or removed, if—

(a) that person is no longer grazing animals on the Common,

(b) that person, having applied to be entered in the register under paragraph (1)(c) no longer wishes to be entered in the register, or

(c) there is any other change in the relevant information recorded in the register.

(4) Any member of the public may, on application to the secretary of the Council—

(a) make an appointment to inspect the register without charge, and make copies or take extracts, or

(b) on payment of a reasonable charge, be provided with copies by the Council.

(5) Any person having a legal interest in the matter and objecting to any information recorded in the register, or to the omission of any information from the register, may complain in writing to the secretary of the Council, and the Council must consider the complaint and give the person notice of its decision in writing.

Decisions of the Council E+W

9.—(1) Schedule 2 (decisions of the council) has effect.

(2) The application of paragraph 9 of the Standard Constitution is subject to Schedule 2.

Vacancies in membership of the Council E+W

10.—(1) Paragraph 18 of the Standard Constitution applies subject to paragraph (2).

(2) If all three of the posts to be filled by election under article 4(1)(a) are vacant, the Council may act only for the purpose of holding a by-election to fill those vacancies.

de Mauley

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

20th November 2013