Intervention powers
Section 45 Powers of local authorities over unclaimed land
211.Section 45 substantially re-enacts section 9 of the 1965 Act. It confers powers on a local authority (defined in subsection (3) to include a parish or community council) to protect land registered as common land or a town or village green where the land has no owner recorded in the register of title at the Land Registry, and the local authority cannot identify the owner of the land. In some cases these powers may be exercisable even though an owner is noted in the ownership section of the commons register, because the ownership section of the commons register is not usually updated when ownership of the land changes, and may be out of date.
212.Subsection (2) enables a local authority to take any steps to protect the land against unlawful interference that could be taken by the owner of the land, and to institute proceedings for any offence committed by a person in respect of the land. The powers in section 45 are exercisable by National Park authorities by virtue of paragraph 1(2)(d) of Schedule 9 to the Environment Act 1995 (and consequential amendment is made to that provision by paragraph 6(a) of Schedule 5).
Section 46 Powers relating to unauthorised agricultural activities
213.Section 46 enables the appropriate national authority to stop unauthorised agricultural activities on registered common land or certain greens, which are detrimental to the interests of persons with rights over the land or those who own or occupy the land, or to the public interest (as defined in subsection (9)).
214.The power may be exercised in relation to any common land, or any town or village green where there are registered rights of common — even where a commons council exists, if that council is failing to prevent such activity from occurring. The intention is to enable the appropriate national authority to deal with problems where other persons who could have taken action (such as the owner or the commoners) have not done so. The power may be used, for example, where one or more persons has been grazing animals on the common without any right to do so, the owner or the commoners have failed to take action, and the public interest in the common is threatened (for example, by over-grazing leading to deterioration of nature conservation, or because animals unlawfully present on the common present a threat to lawful recreational activity).
215.Subsection (2) enables the appropriate national authority to serve a notice either on the person actually carrying out the unauthorised activity or on a person who has caused him to do so (for example, on a person who has hired a contractor). The notice may require that person to stop carrying out the activity, not to carry out any other unauthorised agricultural activities, and to provide any information requested.
216.Subsections (3) to (5) require that before using this power, the appropriate national authority must, where appropriate and practicable, notify certain persons with interests in the common of its intention to act.
217.Subsection (6) requires the appropriate national authority first to have regard to any court proceedings that have been initiated or proposed, and any actions a commons council might have taken to deal with the unauthorised activity, before deciding to exercise the power available to it under this section.
218.Where a person fails to comply with a notice served under subsection (2), the appropriate national authority may apply to a county court for an order requiring the person to comply with the notice (subsection (7)).
