LAND JOURNAL

Common land corrections

Part two of this series looks at two possible avenues to correct the register of common land

Author: Rory Hutchings

27 August 2020

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.

Provision is now included at section 19 of the act to allow the correction of the register in prescribed circumstances – although circumstances remain fairly restricted. There are 2 possible avenues by virtue of section 19 and Schedule 2 to the act.

Section 19 provides: A Commons Registration Authority (CRA) may amend its register of common land or town or village green to:

  • correct a mistake made by the CRA in making or amending an entry in the register
  • correct any other mistake where the amendment would not affect the extent of any land registered as common land or as town or village green; or what can be done by virtue of a right of common
  • remove duplicate entry from the register
  • update the details of any name or address referred to in an entry
  • update any entry in the register relating to land registered as common land or town or village green to take account of accretion or diluvion – where the movement of water at a boundary results in an increase or decrease in land.

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:

  • any entry in the register or any information in an entry was at any time included in the register as result of fraud, and
  • it would be just to amend the register.

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:

  • buildings registered as common land
  • land wrongly registered as common, and
  • waste land of the manor not registered in the 1965 process.

Buildings

Insofar as buildings within a commons registration are concerned, the provision in Schedule 2 allows an application where:

  • the land was provisionally registered as common under section 4 of the 1965 Act
  • at the date of the provisional registration the land was covered by a building or was within the curtilage of a building
  • the provisional registration became final, and
  • since the date of provisional registration the land has at all times been, and still is, covered by building or within the curtilage of the building.

This will be a matter of evidence gathering to demonstrate that the various statutory requirements can be met.

Wrongly registered land

Insofar as there is an argument that land has been wrongly registered, an application can be made where:

  • land was provisionally registered as common under the 1965 Act
  • the provisional registration was not referred to a commons commissioner
  • the provisional registration became final, and
  • immediately before its provisional registration the land was not:
  • subject to rights of common
  • waste land of the manor
  • a town or village green
  • of a description specified in section 11 of the Inclosure Act 1845

Waste land of the manor

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 [1991] 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:

  • land was provisionally registered
  • an objection was submitted
  • an objection was submitted
  • the provisional registration was cancelled in circumstances where:
  • the provisional registration was referred to a commons commissioner
  • the commissioner determined that it was not waste land of the manor because it had ceased to be connected with the manor
  • for that reason only, the commissioner refused to confirm the registration or determined that the land was not subject to rights of common and did not consider whether the land was waste land of a manor.

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.

rory.hutchings@jcpsolicitors.co.uk

Related competencies include: Agriculture, Management of the natural environment and landscape, Sustainability

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