During discussions and debates that took place in the run-up to the Commons Act 2006 (the act) gaining royal assent there was a mix of excitement and concern at the prospect of the new legislation being able to correct the register and to add to or remove land from the register.
It is known that some land should not have been registered as common and equally some land should have been so registered. However, the ability to correct the register under the Commons Registration Act 1965 (the 1965 Act) was limited. The register itself was conclusive evidence of the matters registered, so historical mistakes could not be corrected. The Common Land (Rectification of Registers) Act 1989 did allow for registers to be amended but only in limited circumstances.
Section 19 provides: A Commons Registration Authority (CRA) may amend its register of common land or town or village green to:
Note that subsection 5 provides that the mistake in the register may not be corrected if the CRA considers that, by reason of reliance reasonably placed on the register by any person or for any other reason, it would in the circumstances be unfair to do so. An example of this might be where a landowner has relied upon grazing rights for many years, even if incorrect, the land will have been bought and sold and the rights are important.
Finally, the courts generally have a limited jurisdiction but by virtue of section 19(7) the High Court may order a CRA to amend its register of common land if the court is satisfied that:
The provision for significant amendments by virtue of section 19 are limited. With the exception of allegations of fraud under section 19 (7) – which will be rare beasts indeed – the more controversial applications are likely to be made under the provisions of section 22 and Schedule 2 to the act (called non registration or mistaken registration under the 1965 Act). The Schedule sets out various categories for which applications can be considered. I will look mainly at 3 of these, which are probably the most common:
Insofar as buildings within a commons registration are concerned, the provision in Schedule 2 allows an application where:
This will be a matter of evidence gathering to demonstrate that the various statutory requirements can be met.
Insofar as there is an argument that land has been wrongly registered, an application can be made where:
There is also a provision in paragraph 4 to Schedule 2 to correct what is considered to be an error of law at the time of the registrations under the 1965 Act following the decision of the House of Lords in Hampshire County Council v Milburn: HL  1 AC 325. The provision in the act deals with land that would have been registered had the position been dealt with in accordance with this case. It allows an application for land to be registered as common where it was waste land of the manor.
It applies where:
In summary, not only are the circumstances by which applications for amendment can be made fairly limited, but a significant amount of proof is required for that application to succeed.
Both Defra and Welsh Government have published regulations that set out the procedure for such applications and they have both produced useful guidance notes. The applications will be dealt with by the Planning Inspectorate (PINS) – bear in mind that PINS will charge fees for dealing with the application.
There will undoubtedly be further litigation in relation to some of the issues surrounding correction and amendment of the register; some of the wording of the legislation will no doubt be scrutinised very carefully.
Ultimately the authorities do not want to see any significant erosion of the land classified as common land. It is an important agricultural, cultural, public and environmental resource. The authorities would like the register of commons to be more akin to HM Land Registry, namely a live record of rights and ownership so that commons become more easily dealt with and controlled. That is a significant task.
A variety of applications will now come forward where land has wrongly been registered and we are seeking its removal. Time will tell as to how easy or cost effective such applications are going to be.
Finally, bear in mind that there are also provisions in section 16 of the act that can allow land to be removed from the common.
Related competencies include: Agriculture, Management of the natural environment and landscape, Sustainability
More on this theme in Part 1: Understanding your common land rights.