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Commons registration rules: what's changed?

Common landPosted by Hugh Craddock Sun, December 14, 2014 11:23:54

From tomorrow, 15 December 2014, anyone in England can apply to deregister wrongly registered common land. Remarkably, for many landowners and householders, this will be the first opportunity to deregister wrongly registered land since the registers were drawn up in the late 1960s.

In a recent blog, I explained that Part 1 of the Commons Act 2006 will be brought into force throughout England from 15 December 2014, but only for the limited purpose of applying to deregister land under section 19 of, and paragraphs 6 to 9 of Schedule 2 to, the 2006 Act (section 15 of the 2006 Act, which enables the registration of town or village greens, has been in force in England since 2007). Meanwhile, two new county councils will be enrolled among the existing seven commons registration authorities in whose areas Part 1 is fully implemented (North Yorkshire and Cumbria join Lancashire, Blackburn with Darwen, Herefordshire, Hertfordshire, Kent, Devon and Cornwall): we'll call these the 'Part 1 authorities'. In the rest of this blog, comments which relate only to the Part 1 authorities, and which do not yet apply outside these authorities' areas, are marked with a '§'

New rules regulating Part 1 come into force on the same day: these are the Commons Registration (England) Regulations 2014, which revoke the predecessor Commons Registration (England) Regulations 2008 and 2009 amending regulations. How do the new regulations differ?

For a start, they're slightly longer, at 83 pages incorporating 54 regulations, 8 schedules and, as before, copious model entries for amendments to the registers of common land and greens. There are now two new schedules, including new Schedule 8 (applied by r.1(3)) to explain how the new regulations apply to the majority of commons registration authorities where Part 1 is not yet fully in force. R.2(1) (interpretation) now contains a new definition of 'register unit', perhaps unnecessarily since the composition of a register unit is already addressed in r.6§ (register units). R.7(7) (method of registration) now confers a wide discretion on the Part 1 authority to “supplement an existing entry with information that it considers necessary or desirable for the accurate interpretation of that entry". It's not yet clear what Defra has in mind for this provision: it could perhaps include comments that a particular entry is outdated in some respect, but as the intention of the 2006 Act is to encourage such entries to be updated, a comment might be seen as a quick fix which would discourage a more formal application to update.

R.16(1)(a) (making an application) now requires applications under Part 1 (including applications throughout England for deregistration of land) to be made on a form provided by the Secretary of State: previously, the forms were made available by individual registration authorities. The forms have now been made available on the website.

R.17 (application fees) now merely provides that registration authorities may specify a 'reasonable fee' for an application (including deregistration applications). Previously, a table of fees was specified in the regulations, but an authority could adopt its own fee, not exceeding a maximum of £1,000, having regard to its costs in dealing with such applications. There is now no maximum, and no default fees specified in the regulations, so each authority will have to appoint its own fees (deregistration-only authorities will have just a handful to appoint). The fees must be advertised on the authority's website. If an application is to be referred to the Planning Inspectorate, a new supplementary fee will be charged by the Inspectorate in addition to the fee paid to the registration authority: this rises as high as £3,400 for an application to deregister land under paragraph 9 of Schedule 2 (other land wrongly registered as town or village green), so it wouldn't be surprising if the total fees exceed £5,000 where the application is referred to the Inspectorate. But there is no change to the principle that no fee is payable on an application which is primarily for public rather than personal benefit, such as to register new land (whether as common land or as a town or village green).

Regulation r.19(5)§ simplifies an application to register land as common land which was provisionally registered under the Commons Registration Act 1965, but the registration was subsequently cancelled — such applications are most likely under paragraph 4 (waste land of a manor not registered as common land) of Schedule 2 to the 2006 Act (so can, as yet, be made only in the Part 1 authority areas). An application now need not be accompanied by a map, but may merely cite the register unit number of the provisional registration (however, if the application land differs from the original register unit in any way, a map will still be needed).

There is no longer a requirement on the applicant to serve notice of the application on third parties, nor a discretion on the part of the registration authority to require additional notices to be served: these burdens now fall on the registration authority (r.21, registration authority’s duty to publicise application), and presumably the additional cost will be recovered through higher fees. It will be easier for the authority to ensure compliance with notice requirements by doing the job itself than by validating what has been done by the applicant. However, the former requirement to advertise applications to register, or deregister, land in a local newspaper has been discontinued.

Formerly, any application to deregister land, and most applications to register new land, were required to be referred to the Planning Inspectorate for determination, regardless of circumstances: this reflected the potential seriousness of such an application in terms of the public interest in land remaining registered, and the impact on a landowner of land becoming registered. The new regulations (r.26(3), responsibility for determining applications and proposals) require such applications to be referred only where a person with a legal interest in the land objects. Any application must also be referred where the authority has an interest in the outcome “such that there is unlikely to be confidence in the authority’s ability impartially to determine it" (there is an ambiguity in the drafting which raises the possibility that a referral could be made in the latter case only if the application is to deregister or register land, but the context suggests that is the less likely meaning).

An inspector appointed by the Planning Inspectorate on a referral may now (r.29(3), public inquiries: general provisions) give directions to the parties involved in a public inquiry regardless of whether there is a pre-inquiry meeting — for example, to prepare and circulate statements of case. And an award of costs against a party participating in a public inquiry into an application which is referred to the Inspectorate, and which is for the deregistration or registration of land under Schedule 2 to the 2006 Act, can now be made only for unreasonable behaviour (r.37(2), award of costs in relation to certain applications), although that was in any case previously the Government's policy set out in circulars.

Declarations of entitlement to a right of common were introduced by the 2008 Regulations in the Part 1 authority areas: they enable a person entitled to a right to identify themselves by name in the register. This is because, as a rule, the register shows the land to which a right of common is attached rather than the owner of that land. It also shows the person who applied for registration of the right, but as that application would have been made nearly fifty years ago, and as the applicant was not even then necessarily the owner of the land to which the right was attached, it is and always was mistaken to deduce entitlement from the name shown in the register. The declaration enables the addition of the relevant information: before granting the application for a declaration, the registration authority must satisfy itself that the declarant does indeed own, or occupy, the land to which the right is shown as attached. However, declarations (r.43§) are now formally to be known as 'declaration of entitlement to exercise a right of common', while a tenant may now seek to enter a declaration with a tenancy of only six months or more (formerly three years). A tenant wth a term of just six months may find it hard to justify the fee for such an ephemeral declaration. The registration authority may cancel a declaration which it knows is no longer subsisting (r.43(6)§).

Registration authorities have always been able to enter notes in the land section of the registers about matters affecting the public: for example, a note about a scheme of regulation and management for the common made under Part I of the Commons Act 1899, and to cancel such a note if the matter was no longer subsisting (e.g. if the scheme were revoked). A new provision (r.46(5)§, matters affecting the public) now enables the authority to cancel any note made in the registers, on the same grounds, although the implication appears to be that it is intended to relate to notes made only in the land section under r.46 or its predecessor provisions.

Applications made to the majority of registration authorities in England which are not yet Part 1 authorities, to deregister land, are made under the 2014 Regulations, subject to the modifications made by Sch.8. This brings a certain amount of complexity to the handling of applications affecting the commons and greens registers in these non-Part 1 authority areas:

And in the last three cases, commencement orders make further provision to ensure that, where the register is referred to or modified, it is the register held under the 1965 Act which is affected, and not one held under the 2006 Act (which in these areas, does not yet exist).

Finally, note that the transitional application period, which is the initial period in the new Part 1 authority areas during which free applications may be made to update the registers reflecting historic events which took place between 1970 (the exact opening date will vary according to circumstances) and 2014, such as an agreement to extinguish rights of common, lasts three years, and expires on 14 December 2017 (r.38§, the transitional period and transitional application period). Beyond that date, applications may still be possible, but will attract a fee commensurate with the cost imposed on the registration authority.

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