Registration, deregistration and exchange of land

Clause 14 Statutory dispositions

77.     Clause 14 enables the appropriate national authority to make regulations to provide for amendment of the commons registers consequent on a disposition arising under statute. There are a number of statutes under which common land or greens may be acquired (generally compulsorily) and removed from the commons register, sometimes in exchange for other land being added to the register. Similarly, rights of common may be acquired and extinguished, sometimes becoming exercisable over land given in exchange. Subsection (3) sets outs those instruments which are 'relevant instruments' for the purposes of subsection (1), such as orders by which common land is acquired compulsorily, and (usually) other land is given in exchange, on a compulsory purchase under the Acquisition of Land Act 1981.

78.     It is expected that regulations made under the powers conferred by subsection (1) will place a duty on the persons making or confirming a relevant instrument to notify or direct the appropriate commons registration authority of amendments to the commons registers consequent on the disposition made by the relevant instrument. Regulations may also provide, under subsection (2), that on an exchange of land, any land given in exchange is to be registered, and under subsection (5), that the disposition is not to have effect until its effect is registered. For example, where common land is acquired under section 13 of the New Parishes Measure 1943 ¹⁸ for building a church, regulations may provide that the land is not to cease to be common land until the land and any rights of common are removed from the commons register in accordance with notice given by the Church Commissioners, notwithstanding the effect of section 15(1) of the Measure.

¹⁸ Under section 15 of the Measure, common land may be acquired free of rights of common, subject to the consent of the Secretary of State (or in Wales, the National Assembly).

Clause 15 Registration of greens

79.     Clause 15 sets out the circumstances in which land may be newly registered as a town or village green. It is derived from, but varies in certain respects from, the definition of a town or village green in section 22(1), (1A) and (1B) of the 1965 Act. (There is no substantive distinction in law between a 'town' and a 'village' green: these terms merely reflect the physical setting of a green.)

80.     Subsection (1) provides that in qualifying circumstances, any person may apply to the commons registration authority to register land as a green. Subsections (2) and (3) set out the qualifying circumstances. The first case is where a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and continue to do so at the time of the application. 'As of right' has been defined in case law as meaning openly, without force, and without permission ¹⁹. The second case is where a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years which has ceased, and the application is made within the relevant period after this use ceased. Subsection (6) says that the relevant period is normally two years, but provides that where use as of right has ceased before commencement of the clause, it is five years.

¹⁹ See the judgment of the judicial committee of the House of Lords in R v Oxfordshire County Council and others, ex parte Sunningwell Parish Council [2000] AC 335

81.      Subsections (4) and (5) amplify how subsections (2) and (3) are to work. Subsection (4) provides that any period during which access to the land was prohibited by reason of any enactment is to be disregarded in the calculation of the period. Subsection (5) makes provision about when use is to be regarded as continuing for the purpose of subsection (2)(b).

82.     Subsection (7) enables the owner of any land to apply voluntarily for its registration as a green, without having to show that there has first been 20 years' qualifying use of it by local inhabitants. Subsection (8) requires the consent to such an application of any 'relevant leaseholder', and of the proprietor of any 'relevant charge' over the land, thereby protecting these parties' interests in the land. Both of these terms are defined in subsection (9).

Clause 16 Deregistration and exchange: applications

83.     Section 147 of the Inclosure Act 1845 provides for the "exchange" of land. In recent years, the only use which has been made of this power has been to exchange common land or a town or village green for other land, so that the land given in exchange is substituted for the former common land or green. The Secretary of State (in Wales, the National Assembly) is required to confirm orders of exchange. In deciding whether to confirm the order, the Secretary of State must take account of the interests of the parties to the exchange, but cannot take full account of the broader public interest in the protection of common land and greens. Clauses 16 and 17 provide a replacement mechanism for the exchange of land which is registered under Part 1. Section 147 of the Inclosure Act 1845 is repealed by Part 3 of Schedule 6.

84.     Subsection (1) enables the owner of land registered as common land or a town or village green to apply to the appropriate national authority for the land or part of the land to be released from registration. If the 'release land' is more than 200 square metres in area, an application must be made at the same time to register 'replacement land' as common land or a green in its stead (subsections (2) and (3)). If the release land is smaller than this, a proposal for replacement land may be included, but need not (subsection (4)). Any replacement land may not be land already registered as common land or a green. Its owner must join in the application, if different from the owner of the release land (subsection (5)).

85.     Subsections (6) to (8) set out the matters that the appropriate national authority must consider in deciding whether or not to consent to an application.

86.      Subsection (9) ensures that an application under this clause may be made only with the consent of any relevant leaseholder, and of the proprietor of any relevant charge over the release land and over any replacement land.

Clause 17 Deregistration and exchange: orders

87.     Subsection (1) requires the appropriate national authority, if it grants an application under clause 16, to make a 'release order' to direct the commons registration authority to remove the release land from the register. Subsection (2) requires, where appropriate, the registration of the replacement land and of any rights of common previously registered as exercisable over the release land, which are now exercisable over the replacement land.

88.     Subsection (3) provides for a power to make regulations requiring a commons registration authority to take such other steps on receiving a release order as may be provided.

89.     Subsections (4) and (5) provide for the extinguishment over the release land either of rights of common or any rights exercisable by virtue of the land being a town or village green on its removal from the register. Such rights will generally transfer to the replacement land. Unlike an order under section 147 of the 1845 Act, an order under clause 17 has no effect on the title (i.e. the ownership) of the release land or of any replacement land.

90.     Subsection (6) provides that if any relevant provision applied to release land before the relevant date (defined in subsection (9) as the date on which the register is amended) it ceases to apply to the release land and applies, instead, to the replacement land. Subsection (8) lists the various enactments and measures which are relevant provisions for the purposes of subsection (6). For example, where the release land is subject to a right of access under section 193 of the Law of Property Act 1925, and limitations (similar to byelaws) have been imposed on the right under that section, both the right and the limitations will cease to apply to the release land, and will normally transfer to the replacement land.

91.     There may however be specific circumstances where it would not make sense for recreational rights that apply over an existing green, or specific statutory provisions that apply on an existing common, automatically to transfer to any replacement land. For this reason, subsection (7) enables an order to make special provision disapplying or varying these rights or provisions in relation to the replacement land.

92.     An order may also vary the effect of any local or personal Act in relation to the release land, the replacement land, or both. For example, where the release land is subject to a local Act regulating the management of the release land and adjoining common land, and the replacement land would not otherwise be subject to that Act, the order may provide that the replacement land is to be deemed to be subject to the Act.

Conclusiveness and Correction of the Registers

Clause 18 Conclusiveness

93.     Section 10 of the 1965 Act provides that "the registration .. of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration". Clause 18 makes similar provision as to the extent to which information in the registers can be relied on. It is immaterial for the purposes of this clause whether an entry in the register was made after commencement of the Bill or under the 1965 Act — see subsection (6).

94.     Under subsection (2), where land is registered as subject to a right, it is deemed to have become subject to the right on its registration if it would not otherwise have been so subject. It can therefore be assumed that, in law, the land is subject to the right. Subsection (2) does not in itself guarantee that the land continues to be subject to the right. But, given the previous provisions of the Bill, it is in most cases impossible for the situation to have changed, since the right cannot be extinguished by common law, and cannot be surrendered or varied without the surrender or variation being registered. One possible exception is an extinguishment or variation of the right by virtue of another enactment which may have effect before the necessary amendment is made to the register (for example, by a compulsory purchase order made under the Acquisition of Land Act 1981). But clause 14(5) enables regulations to be made which cause the effect of such an enactment to be delayed until the register is amended.

95.     Subsection (3) provides that, where the register shows that a right of common is attached to land, the right is deemed to be attached to that land upon registration. Subsection (3) does not in itself guarantee that the right continues to be attached to that land. But again, given the provisions of the Bill, it is in most cases impossible for the situation to have changed, since the effect of subsection (6), and the prohibition on severance contained in clause 9, is generally that any right of common registered as attached to land ²⁰ will continue to be attached to land. The exceptions are either that an application is made under paragraph 1 or 3 of Schedule 1, or that an application is made during the transitional period (see Schedule 3 and the notes to that Schedule) that the right had been severed after the register entry was made but before the commencement of Schedule 3 ²¹, and the commons registration authority is satisfied that the register should be amended to give effect to the severance. In either case, the severance of the right will then be registered.

²⁰ The rights section of the commons registers prepared under the 1965 Act is prescribed in Form 3 of Schedule 1 to the Commons Registration (General) Regulations 1966 (SI 1966/1471). Column 5 of the prescribed form provides for entries describing "Particulars of the land (if any) to which the right is attached".

²¹ See also paragraph 126.

96.     Subsection (4) provides that, where the register shows that a person is the owner of a right of common in gross, that person is to be taken as the owner upon registration, even if he or she would not otherwise be the owner.

97.     Subsection (5) preserves what is believed to be the present position under the 1965 Act, which is that, where a right of common is subject to any customary constraint not mentioned in the register (for example, that the rights may be exercised only at certain times of the year, that stock should be hefted in accordance with local custom, or that the times at which stock may be turned out are to be determined by a manorial or other ancient court ²²), those constraints are preserved notwithstanding that they are not mentioned in the commons registers.

²² The jurisdiction of certain ancient courts to transact customary business was preserved by section 23 of the Administration of Justice Act 1977.

Clause 19 Correction

98.     Clause 19 enables commons registration authorities to correct certain errors in the commons registers. Subsection (4) provides that a correction may be made on the authority's own initiative or on an application by any person. Subsection (2) sets out the purposes for which a correction may be made. These comprise:

• In paragraph (a), a mistake in making or amending an entry in the register (including, by virtue of subsection (3), an ambiguous description of, for example, rights of common), but only where the mistake was made by the authority. Such a mistake may arise, for example, where an error was made by the authority in transposing onto the register map a map supplied by an applicant for provisional registration of common land, or where in amending an entry in the register (for example, on an apportionment under the 1965 Act), the authority erroneously added a zero to (or deleted a zero from) the number of rights registered. An error made in a map supplied by an applicant defining the area of common land, which was faithfully reproduced in the register entry, could not be corrected under this provision (but it may be possible to correct such an error under the provisions in Schedule 2).

• In paragraph (b), any other mistake, whether made by the authority or another person, provided that the amendment would not affect the extent of land registered as common land or as a town or village green, nor the quantification of any right of common. For example, a mistake may have been made by an applicant for registration of a right of common attached to land by which the dominant tenement was wrongly defined. The authority would be able to correct such a mistake.

• In paragraph (c), removing a duplicate entry in the register (whether caused by the error of the authority or another person). Duplicate entries typically arose where application was made for provisional registration of a right of common under the 1965 Act, both by the tenant of a farm entitled to exercise the right, and the landlord of the farm ²³, and no objection was made to either registration, so that they both became final.

²³ See regulation 7(1) of the Commons Registration (General) Regulations 1966 (SI 1966/1471).

• In paragraph (d), updating any details of name or address, such as those which relate to the registered owner of a right held in gross.

99.     Subsection (5) provides that the commons registration authority may not correct mistakes in the register if it would be unfair to do so. For example, if land had been acquired by a person reliant on an inspection of the register which showed it not to be registered common land, but the commons registration authority had mistakenly excluded that land from the register, it would not be able to correct the mistake if it would, in all the circumstances, be unfair to do so (having regard, for example, to the interests of the person acquiring the land, as well as the interests of others interested in correcting the error).

100.     Subsection (7) provides a limited power, derived from section 14(a) of the 1965 Act, for the High Court to order the register to be amended where an entry, or any information in an entry, has been secured by fraud and it would be just to amend it. The High Court will also be able to judicially review the actions of a commons registration authority, but it is not necessary to include provision in the Bill for this purpose.

Information etc

Clause 20 Inspection

101.     Clause 20 provides for a right of public access to the commons registers, and to records held in connection with applications for registration under Part 1 or under the 1965 Act. Regulations may be made under subsection (2) which provide for exceptions to the right, or which place conditions on the exercise of the right, including, as under subsection (3), the payment of fees.

Clause 21 Official copies

102.     Clause 21 provides for the admissibility in evidence, and the issue, of official copies.

Transitory and transitional provision

Clause 22 and Schedule 2: Rectification of mistakes etc under the 1965 Act

103.     Clause 22 introduces Schedule 2 to the Bill, which makes provision for rectification of mistakes and other matters in the commons registers prepared under the 1965 Act. Regulations may prescribe a cut-off date after which applications under paragraphs 2, 3, 4 or 5 of Schedule 2 may no longer be made (see paragraphs 2(1), 3(1), 4(1) and 5(1)).

104.     Paragraph 2 of Schedule 2 enables certain land to be registered as common land on an application by any person. An application may be made only in respect of land which is not registered as common land or a green, and which is waste land of the manor (paragraph 2(1)(a)) at the date of the application. Waste land of the manor has been defined as "the open, uncultivated and unoccupied lands parcel of the manor" ²⁴. Consequently, land which is otherwise eligible for registration under paragraph 2, but which has been developed, improved and brought in hand, or otherwise fails to fulfil the character of waste land of the manor, cannot be registered under paragraph 2.

²⁴ Attorney General v. Hanmer (1858) 2 LJ Ch 837. The effect of the Hazeley Heath case (see footnote 26) is that it is not relevant for these purposes whether the land continues to be held by the lord of the manor — but the land must be of manorial origin.

105.     The criteria for registration of land under paragraph 2 are set out in sub-paragraphs (2) to (5), to the effect that:

• the land was provisionally registered as common land under section 4 of the 1965 Act,

• there was an objection to its provisional registration, and

• one (or more) of the following applies:

(i) the registration was dismissed by the Commons Commissioner solely because the land had ceased to be connected with the manor (sub-paragraph (3)),

(ii) the registration was dismissed by the Commons Commissioner because the land was not subject to rights of common, and the Commissioner did not go on to consider whether the land qualified instead for registration as waste land of the manor (sub-paragraph (4)), or

(iii) the registration was withdrawn at the request or with the agreement of the applicant for registration (sub-paragraph (5)).

106.     The Court of Appeal decided in 1978 in the Box Hill case ²⁵ that 'waste land of a manor' — the second limb of the definition of common land for the purposes of registration under section 22(1)(b) of the 1965 Act — must still be in the ownership of the lord of the manor, but the court's decision was subsequently overruled in 1990 by the judicial committee of the House of Lords in the Hazeley Heath case ²⁶. Between 1978 and 1990, many provisional registrations of common land were cancelled by the Commons Commissioner solely on the grounds of the Box Hill judgment, or were withdrawn by the applicant for registration in anticipation of cancellation, and were out of time or ineligible for appeal following the decision in Hazeley Heath. Sub-paragraphs (3) and (5) enable such cases meeting the criteria specified to be the subject of a fresh application for registration.

²⁵ Box Parish Council v Lacey [1979] 1 All ER 113.

²⁶ Hampshire County Council and others v Milburn [1990] 2 All ER 257.

107.     Cases where an application for provisional registration was withdrawn after an objection will also be eligible for consideration under sub-paragraph (5) whether or not the reason for withdrawal was the decision in the Box Hill case. This is intended to enable fresh consideration to be made in respect of cases where applications for registration of a common were withdrawn by agreement between the several applicants, often in advance of a hearing before the Commons Commissioner. Such agreements generally led to the Commissioner cancelling the registration by consent ²⁷, without the opportunity for the wider public interest to be considered in relation to the application.

²⁷ See the provision for decisions by consent in regulation 31 of the Commons Commissioners Regulations 1971, SI 1727.

108.     Sub-paragraph (4) enables cases to be reviewed where the Commons Commissioner concluded, on an objection to the registration of land as common land, that the land was not subject to rights of common, but did not consider whether the land might qualify for registration as waste land of the manor. Where none of the parties appearing before the Commissioner argued that the land might also qualify as waste land, the Commissioner often concluded that the registration should fail without further consideration. However, there is some authority to support the view that the Commissioner ought to have examined the evidence before coming to a decision in such cases, since there is a public interest aspect to the registration of common land and whether land should or should not be registered should not be treated solely as a matter of dispute between the parties to the application. ²⁸

²⁸ See the judgement of Lord Denning MR in the Corpus Christi case (footnote 6): "I cannot think it correct for the commons commissioners to treat these cases as if they were pieces of civil litigation, such as a lis inter partes, in which the applicants have to prove their case. .. The hearing by the commissioner should be regarded more as an administrative matter, to get the register right, rather than as a legal contest. The commons commissioner should inquire carefully whether any land is common land, and, if it is, register it in the land section accordingly."

109.     In determining the circumstances of a decision by the Commons Commissioner, reference may be had to bound copies of the Commissioner's decision letters which are held by Defra (in relation to both England and Wales).

110.     Where land is registered under paragraph 2, it will not be possible to claim or register any rights of common which were formerly exercisable over that land. Such rights were extinguished for want of registration, under section 1(2)(b) of the 1965 Act (see footnote 5).

111.     Paragraph 3 enables certain land registered as common land to be transferred to the register of town or village greens on an application by any person. Some greens were mistakenly registered under section 4 of the 1965 Act as common land, typically because the land was subject to rights of common, and the applicants believed that such land was required to be, or wished to have it, registered as common land. It appears that the effect of section 1(2)(a) of the 1965 Act was to cause such land to cease to be a green, and it is unlikely that the protection afforded to greens by nineteenth century legislation (notably section 12 of the Inclosure Act 1857 ²⁹ and section 29 of the Commons Act 1876 ³⁰) extends to such land. Paragraph 3 therefore affords a fresh opportunity to ensure that such land is entered in the correct register. An application will need to show that, immediately before its provisional registration under section 4, the land was in fact a town or village green within the meaning of the 1965 Act as originally enacted (for example, evidence may be adduced that the land was allotted as a town or village green under an inclosure award). Any transfer will not affect rights of common registered over the land.

²⁹ Prevents damage and interruption to enjoyment of the green.

³⁰ Prevents encroachment or disturbance other than to improve enjoyment of the green.

112.     Paragraph 4 makes provision for the deregistration of land wrongly registered as common land. The registration of common land under the 1965 Act gave rise to a number of regrettable errors. People, including landowners, who disagreed with a provisional registration under the 1965 Act were able to make formal objections within a certain time. But once a provisional registration became final, no allowance was made for substantive corrections to be made, whatever the circumstances. In order to publicise provisional registrations, local authorities were required to give notice of them in local newspapers, and to make the provisional registers available for inspection. There was no requirement to serve notice on the affected landowners (because identifying the ownership of such land was often impossible and one of the purposes of the legislation was to clarify ownership). However, it is clear that some landowners did not see the notices or had no reason to look out for them, and as a consequence a number of mistaken or misguided provisional registrations became final without their being aware.

113.     Paragraph 4 enables application for deregistration of certain registered common land on an application by any person. Land will be eligible for deregistration under this paragraph if:

• the land was provisionally registered as common land on an application under section 4 of the 1965 Act,

• the land was provisionally registered on the basis of the information supplied in the application (that is, the land was not registered as a result of an error on the part of the commons registration authority), and

• the provisional registration of the land as common land was not referred to a Commons Commissioner.

114.     It follows that an application cannot be made where a hearing was originally held into the registration of the land by the Commons Commissioner. However, an application under paragraph 4 will not be precluded merely because a hearing was held which considered only the registration of rights over the land, or because a hearing into the ownership of the land was held under section 8 of the 1965 Act.

115.     An application under this paragraph will succeed only if it can be shown that, before its registration, the land was not common land (whether subject to rights of common or waste land of the manor), nor a town or village green within the meaning of the 1965 Act as originally enacted, nor within the definition of land subject to be inclosed under section 11 of the Inclosure Act 1845. The exclusion for the purposes of this paragraph of land subject to inclosure under the 1845 Act ensures that land cannot be removed from the registers under this provision if, at the time of its registration, it was (among other things) a regulated pasture. Regulated pastures are lands which are owned in common by several persons, who also use the land in common at certain or all times of the year (for example, the land may be used to graze in common the stock of all the owners). A number of regulated pastures were wrongly registered under the 1965 Act, but the continuing registration of such land is not thought to give rise to any difficulties, and confers some benefits in terms of security of status, and public rights of access.

116.     Provisions similar to paragraph 4 are found in paragraph 5 for applications for the deregistration of certain registered town or village greens on an application by any person. However, the criteria for deregistration of greens are slightly different. Sub-paragraph (2) provides that an application will succeed only if it can be shown that, before its original provisional registration, the land was not common land nor a town or village green. Sub-paragraph (3) provides that the latter condition is satisfied if, (a) owing to its physical nature, the land could not have been used by members of the public for lawful sports and pastimes throughout the 20 years before its registration under the 1965 Act (for example, if buildings on the land precluded such use), and (b) the land was not (and still is not) allotted under any enactment as a green, or for the purposes of a green. This provision seeks to avoid an application under paragraph 5 reopening questions of witness testimony as to the actual use made of the green prior to the date of provisional registration.

117.     Paragraph 6 enables regulations to be made to provide for the award of costs arising in determining an application under Schedule 2. Clause 24 enables regulations to make provision about applications under paragraphs 2 to 5.