BRENDON COMMONS COUNCIL
RULES MADE UNDER ARTICLE 5(d) OF THE BRENDON COMMONS COUNCIL ESTABLISHMENT ORDER 2013 (S.I. 2013/2959)
Interpretation:
In these Rules –
“active grazier” has the same meaning as it bears in the Establishment Order;
“the Council” means the Brendon Commons Council;
“Establishment Order” means the Brendon Commons Council Establishment Order 2013 (S.I. 2013/2959);
“Internal Management Agreement” means the agreement between the commoners’ lead representative and all those who contribute to delivery of and/or receive payments under an agri-environment scheme;
“live register” means the register that the Council is required to maintain under article 8 of the Establishment Order;
“working days” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is bank holiday under section 1 of the Banking and Financial Dealings Act 1971.
1Rules relating to Live Register
1.1A commoner must notify in writing the Council Secretary or such other person who maintains the live register of any changes to the details of rights of common entered for that commoner in the live register within 30 working days of any such change. Such changes will include, but are not limited to, the sale, transfer or receipt of land to which a right of common is attached; the creation of any tenancy; lease of a right of common; family arrangement (where one member of the family begins exercising a right or part of a right previously exercised by another family member); and deeds of gift.
1.2Where the Council Secretary or such other person who maintains the live register requests information from anyone entered in the live register, that person must provide the information in writing to the Council Secretary within 10working days of the request being communicated to that person.
1.3In the event of an apportionment of a right of common the apportionment must be agreed with the Council Secretary or such other person who maintains the live register.
2Rules relating to agreements entered into by the Council
2.1No person shall graze in contravention of agreed stocking arrangements or any other term in an Internal Management Agreement. The Council may approve derogations in respect of grazing rights and their use as part of an agri-environment agreement.
2.2The Council shall for the period that the Common is subject to an agri-environment agreement, and for any period thereafter as agreed with the landowners, assume the landowner’s responsibilities for managing the vegetation of the Common.
3Rules relating to grazing and livestock husbandry
3.1No person mustgraze an animal on the Common unless entitled to exercise a right of common to graze animals (including by lease or tenancy) or by virtue of the landowner’s surplus, and approved as an active grazier by the Council as set out in paragraphs11.1 and 11.2.
3.2No person mustgraze an animal on the Common without taking all reasonable steps to ensure that from the date of the animal’s introduction it is hefted, leared or flocked in accordance with the practice approved by the Council and published on the Council’s website.
3.3A person must ensure that, in respect of the animals they graze on the Common:
(a)all animals are officially identified in accordance with the prevailing legislation;
(b)all cattle and sheepare ear-tagged in accordance with the prevailing legislation;
(c)all native breed ponies are clearly marked;
(d)for all other types of horses a description of their details, which must include colour, size, sex and any distinguishing details, is provided to the Council Secretary or such other person who maintains the live register.
3.4Every person grazing sheepon the Common must one month prior to first doing sosend to the Register Officer a diagram and a description of the paint mark adopted for this purpose.The Council must display authorised marking on the website it uses. 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 Common, and thereafter such person shall ensure that all his animals are marked in accordance with such requirement.
3.5No person shall graze an animal on the Common 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 equivalent enactment replacing that Act.
3.6A person who grazes on the Common 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 a notifiable disease must so soon as is reasonably practicable, and in any case within 48 hours of such discovery or information, arrange for the removal of that animal from the Common and for that animal to be tested. If the results of such a test confirm that that animal is suffering from a notifiable disease that person must undertake an inspection to ensure that other stock belonging to him and similarly grazed is not affected by such a disease.
3.7Where any animal is discovered to be suffering from a notifiable disease the person by whom it was grazed must within 48 hours of such discovery notify the Council Secretarythereof.
3.8No person mustgraze on the Common any animal which has ceased to be in a healthy condition and the Council may by written notice require such person to remove from the Common any animal the Council considers to have ceased to be thrifty or which would suffer unduly if allowed to remain grazing. That person mustremove such an animal within 48 hours of receipt of such a notice.
3.9A person who grazes any animal on the Common must, upon being directed by the Council to do so, gather his stock and/or clear the Common of his stock for purposes of assessing stock numbers, disease prevention or for regular veterinary or animal welfare purposes (such as dipping) or such other purpose. The Council Secretary will give all active graziers reasonable written notice of the direction, including the gathering and clearing dates.
4Restrictions on grazing by lawful means
4.1The Council may by notice,and in accordance with any directive from Natural England or successor body, or disease control measure, or such other reason the Council considers necessary,impose periods, known as ‘restricted periods’ during which:
(a)the grazing of animals on part or all of the Common (as the Council may decide) is prohibited;
(b)the types of animals which may graze part or all of the Common shall be those that are specified by the Council;
(c)the number of animals which may graze part or all of the Common is limited (as the Council may decide).
4.2Notice of a restricted period must be published on the website used by the Council and provide details of the restriction, including the duration, the area affected and an explanation of why the restriction is necessary. The Council Secretary must also inform, preferably in writing, all active graziers recorded in the live register.
4.3In relation to a restricted period under paragraph 4.1, no person shall graze any animal on the Common contrary to the terms of notice of the restricted period.
4.4The Council may require active graziers to prepare disease control plans in accordance with the requirements of the Animal and Plant Health Agency or similar body and to provide copies of the approved plan to the Council Secretary.
5Prohibited Animals
No person shall graze on the Common:
(a)a bull over the age of six months;
(b)a shod horse or a shod pony;
(c)an animal which the Council considers to be a danger to any person or animal;
(d)a Stallion except where the Council has given its prior written approval and for such period as the Council may specify;
(e)a ram or ram lamb between the 8th August and the 10th November (both dates inclusive) in any year; or
(f)any animal excluded as part of an agri-environment agreement.
6Supplementary feeding of grazed animals
No person shall give any supplementary feed to animals grazing the Common, except where such supplementary feeding is justified on welfare grounds or has been permitted as part of an agri-environment agreement and or authorised in writing by the Council.
7Removal of fallen stock
A person must arrange without delay for the removal from the surface of the Common of thecarcass of any animal belonging to him or for which he is responsible provided that it ispossible to obtain access to that carcass. If he is informed of such a death by the Council Secretary,or by a reeve appointed by the Council, or by a member of the Council and is instructed to remove that carcass he must arrange for its removal as soon as isreasonably practicable.
8Disputes regarding grazing
8.1In the event of a dispute or appeal by an owner, tenant or person entitled to graze the Common, regarding matters covered in these Rules or other matters relating to agricultural activities, the management of vegetation, the exercise of rights of common on the Common, or the leasing or licensing of rights of common, the Council will adjudicate in the first instance. If this does not resolve the matter, and if both parties agree, an appropriate person such as a member of the Royal Institution of Chartered Surveyors may arbitrate, and if arbitration does not resolve the matter then one or both parties may choose to refer the matter to the appropriate court.
9Rules for theProtection of the Common
9.1No person shall keep on the Common any animal which the Council has required him in writing to remove on account of its being grazed or fed in contravention of any management plan or similar, or Code of Guidance approved by the Council or in order to prevent or limit damage to the Common.
9.2No person shall burn moorland or cut bracken unless authorised beforehandin writing to do so by the Council (in accordance with an agri-environment agreement).
10Rules relating to lease or licensing of Rights
10.1Any person may lease or license a right of common or similar entitlement to another party for a maximum period of 12 months (or in exceptional circumstance for more than 12 months but less than 24 months) provided that both parties serve written notice upon the Council Secretary and the leasing (or licensing)is approved by the Council, Such approval not to be unreasonably delayed or withheld but the Council may delay implementation of the approved change for up to 18 monthsfrom the date of approval.
10.2If both parties wish to extend the lease or licence for a further period of 12 month (or longer in exceptional circumstances), beyond that which the Council has agreed, they may apply to do so as set out in paragraph 10.1. A lease or licence can only be valid for a period of up to 24 months including any extension period, however if approved by the Council a further lease or licence can be issued on the same terms after 24 months.
10.3Any active grazier who contravenes the rules on leasing of rights shall cease to be paid as an active grazier under an agri-environment agreement.
10.4Where land to which right of common is attached (or any part thereof) is leased as a Farm Business Tenancy or a tenancy under the Agricultural Holdings Act 1986 or equivalent, the tenant must receive a rateable share of the right of common (commensurate with the area of the dominant tenement to which the tenancy relates).
11Rules relating to switching from active grazier to inactive (and vice versa)
11.1No active grazier may cease to graze nor may an inactive grazier start to graze while the Common is subject to an agri-environment agreement, save by the method set out in the Internal Management Agreement or similar.
11.2During any period where the Common is not subject to an agri-environment agreement, an active grazier who wishes to cease to be an active grazier, or an inactive grazier who wishes to start grazing must, unless in exceptional circumstances, seek prior approval from the Council by giving written notice of their intention to the Council Secretary by 31st March. Such approval not to be unreasonably delayed or withheld but the Council may delay implementation of the approved change for up to 18 months from the date of approval.
12Rules relating to boundaries
12.1Boundaries on the Common established in accordance with the relevant legislation, or boundaries between the Common and adjoining land, must not be removed or deliberately damaged. Where boundaries have been removed or deliberately damaged the boundary owner must reinstate them and/or repair them as soon as practicable and in any event must do so within 28 days of receiving a written notice to reinstate them and/or repair the boundary from the Council. If the boundary owner does not comply with this notice, the Council may repair and/or reinstate the boundary and recover its reasonable costs from the boundary owner.
12.2 No commoner whose land adjoins the common shall tie back any boundary gate in order to allow the common to be grazed in conjunction with adjoining land.
1313 Penalty for breach of rules
The Council may apply to the county court for an order under section 34(4) of the Commons Act 2006 to secure compliance where any person contravenes either Rule 3.1 or Rule 3.9.
14 Interpretation Acts application
The Interpretation Acts 1889 - 1978 shall apply to these Rules as they apply to any enactment.
Signed pursuant to a Resolution of the Council on the ………………….. day of ………….. 2018
………………………………………………. Chairman
………………………………………………. Secretary
Annex
This Annex – Related legislation - is attached for information but does not form part of the Rules as confirmed by the Secretary of State.
Use and management of the Common, and the functioning and powers of Brendon Commons Council, is regulated by other legislation including, but not limited to, the following:
The Commons Act 2006
Section 31: Functions
(1)An order under section 26 is to confer on a commons council functions relating to any one or more of the following—
(a)the management of agricultural activities on the land for which the council is established;
(b)the management of vegetation on the land;
(c)the management of rights of common on the land.
(2)The functions conferred on a commons council under subsection (1) must be those the appropriate national authority considers appropriate in the case of that council.
(3)The functions which may be conferred on a commons council under subsection (1) include in particular functions of—
(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;
(b)making rules relating to the leasing or licensing of rights of common;
(c)preparing and maintaining a register of grazing;
(d)establishing and maintaining boundaries;
(e)removing unlawful boundaries and other encroachments;
(f)removing animals unlawfully permitted to graze.
(4)Rules made by virtue of subsection (3)(a) may have the effect of—
(a)limiting or imposing conditions on the exercise of rights of common over, or the exercise of rights to use the surplus of, the land for which the council is established;
(b)requiring the provision of information to the commons council in relation to the exercise of those rights.
(5)In exercising a function conferred under subsection (3)(f), a commons council may—
(a)dispose of any animal it removes; and
(b)recover from the owner of the animal the costs that it may reasonably incur in removing and disposing of it.
(6)A commons council must discharge its functions having regard to—
(a)any guidance given by the appropriate national authority; and
(b)the public interest in relation to the land for which it is established.
(7)The reference in subsection (6)(b) to the public interest includes the public interest in—
(a)nature conservation;
(b)the conservation of the landscape;
(c)the protection of public rights of access to any area of land; and
(d)the protection of archaeological remains and features of historic interest.
Section 32: Ancillary powers
(1)A commons council has the power to do anything which it considers will facilitate, or is conducive or incidental to, the carrying out of its functions.
(2)The power conferred by subsection (1) includes power to—
(a)enter into agreements;
(b)prepare and adopt management plans;
(c)raise money (including by applying for funds from any source);
(d)acquire or dispose of land;
(e)employ staff.
(3)The power of a commons council to raise money as specified in subsection (2)(c) includes power to require the payment of fees in connection with—
(a)the exercise of rights of common over, or the exercise of rights to use the surplus of, the land for which the council is established, and
(b)participation in the council,
and any such fees owed to the council may be recovered as a debt due to it.
The Brendon Commons Council Establishment Order 2013
Section 5 - Functions of the Council
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.
Countryside and Rights of Way Act 2000
SCHEDULE 2 - Restrictions to be observed by persons exercising right of access
General restrictions
1. Section 2(1) does not entitle a person to be on any land if, in or on that land, he-
(a)drives or rides any vehicle other than an invalid carriage as defined by section 20(2) of the Chronically Sick and Disabled Persons Act 1970,
(b)uses a vessel or sailboard on any non-tidal water,
(c)has with him any animal other than a dog,
(d)commits any criminal offence,
(e)lights or tends a fire or does any act which is likely to cause a fire,
(f)intentionally or recklessly takes, kills, injures or disturbs any animal, bird or fish,
(g)intentionally or recklessly takes, damages or destroys any eggs or nests,
(h)feeds any livestock,
(i)bathes in any non-tidal water,
(j)engages in any operations of or connected with hunting, shooting, fishing, trapping, snaring, taking or destroying of animals, birds or fish or has with him any engine, instrument or apparatus used for hunting, shooting, fishing, trapping, snaring, taking or destroying animals, birds or fish,
(k)uses or has with him any metal detector,