Commentary on Sections Part 3:  Works Section 44 and Schedule 4 Supplementary
204.Section 44 enables the appropriate national authority to amend, by order, local or personal Acts enacted before commencement, in order to ensure that any provision in those Acts about consent for works, or about enforcement against unlawful works on registered common land (or unregistered land that is subject to a scheme made under the Metropolitan Commons Act 1866 or the Commons Act 1899) is consistent with provision in Part 3. An order may also, for the same purpose, amend a provisional order confirmation Act made under the Commons Act 1876.
205.Section 44 also introduces Schedule 4, which contains supplementary provisions about works on common land.
206.Paragraph 1 of Schedule 4 amends section 5 of the Metropolitan Commons Act 1866 (which prevents inclosure of metropolitan commons), to restrict its scope to commons which are under the control and management of a London borough council. On these commons, the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 overrides the prohibition on inclosure for certain specified purposes. Article 7 of the Order contained in the Schedule to the 1967 Act enables a local authority to provide and maintain certain recreational facilities on any common under the control and management of that local authority. Article 12 provides that in exercising that power the local authority may not erect buildings or inclose any part of the common without the consent of the Minister. Article 17 provides that the local authority may utilise, alienate or exchange such common land for the purposes of street improvements with the consent of the Minister.
207.Sub-paragraphs (1) to (4) of paragraph 2 amend the Order to provide that the procedures and decision-making criteria in sections 39 and 40 should apply to applications for consent made under article 12 of the Order. Metropolitan commons which are not subject to the Order, being those not under the control and management of a local authority, and those outside Greater London(45), will be subject to the regime under section 38 of the Act. Sub-paragraphs (5) and (6) clarify the circumstances in which article 17 of the Order will apply to proposed works, and apply the section 40 procedures to applications made under that article in respect of common land.
208.Paragraphs 3, 4 and 5 provide for the procedures and decision-making criteria in sections 39 and 40, and the enforcement regime in section 41, to apply to applications for consent made in relation to common land belonging to the National Trust, and for sections 39 and 40 to apply in relation to land granted under the New Parishes Measure 1943.
209.Paragraph 6 is a transitional provision providing the same scope for any person to apply to the county court under section 194(2) of the Law of Property Act 1925, whilst that provision remains in force, for enforcement action against unlawful works. This wider enforcement power will only be available in relation to works carried out on or after the date of introduction of the Commons Bill into the House of Lords (28 June 2005) and before section 194(2) is repealed. It is expected that the commencement order that gives effect in due course to the repeal of section 194 will preserve the scope for enforcement under the section against works undertaken unlawfully before its repeal.
210.The effect of paragraph 7 is addressed in the notes on section 38.