Government guidance on commons and greens, most notably on applying to update the registers of common land and town or village greens held by certain local authorities (i.e. 'commons registration authorities'), has undergone the transformation to 'smarter guidance', part of a Government-wide project to reduce the volume of all public sector guidance, and to improve its quality, consistency and accessibility.
The key to the new guidance is the launch page, Common land: guidance for commons registration authorities and applicants, which contains links to specific pages of guidance in two groups, targeted at commons registration authorities, and at the public who may have an interest in the registers.
The original guidance was published in two volumes targeted at the same two interests. Each volume was pretty lengthy: the guidance to authorities (ver. 2.0 is currently still available on gov.uk, and in any case, via the National Archives) tallied at around 180 pages. The new guidance, which is advertised as at 'beta' stage, is divided into several now much briefer themes. Guidance to authorities is available on:
- • maintaining the registers
- • dealing with applications and making proposals
- • dealing with new event applications
- • dealing with applications and proposals to correct mistakes
- • dealing with applications and proposals to correct historic mistakes
And the same themes are available to anyone looking to make such applications (there is, understandably, no parallel theme for maintaining the register):
- • apply to make changes
- • apply to record new events
- • apply to rectify the registers
- • apply to record historic events
Much has changed. Indeed, the switch to 'smarter guidance' is not the first occasion on which the guidance has been pared down: version 2.0 replaced version 1.43 in December 2014, and at that time excluded guidance about commons councils, the protection of common land, local authority schemes of regulation and management, 'intervention' (enforcement), vehicular access over common land and greens, deregistration and exchange, and public access rights over common land, all contained in chapter 3, which is as close as Defra has got to fulfilling the Parliamentary commitment to publishing a circular on common land (Lords Hansard, 30 Nov 2005, Col.281) — albeit the guidance has never formally applied outside the commons registration authority areas pioneering Part 1 of the Commons Act 2006.
The new guidance is concise, even terse, and lacks an explanation or context: the commons registration officer is informed, for example, that two authorities may enter into a straddling agreement as regards land straddling the authorities' common boundary (so that "only 1 [sic] of you’ll [sic] be responsible for the registration of that land"), and even that agreements made before 1 April 1974 expired on that date — but not the legislative authority for such agreements, nor the legislative cause of the demise of pre-1974 agreements. This isolation from the legal context is found throughout the guidance (indeed, it's common to smarter guidance generally) and may make it less daunting and therefore helpful to the casual reader, but it may also impair its utility to a local government officer who wishes to understand, and justify, why the guidance is framed as it is. Nor does the new guidance offer the local government officer any interpretation or explanation of the legislation beyond the bare recital of its requirements. So, for example, the guidance to authorities on dealing with applications to register a statutory disposition (such as a compulsory purchase order affecting common land) states that: "Statutory dispositions normally come into effect after the date on which they’re confirmed. You’ll need to check its [sic] terms to find the date on which it has or will come into effect, as you can only register land or rights after that date." But there is no illustration of what this might mean in a particular case, or what to look for in the statutory disposition, as there was previously, to ensure that the instrument is effective and capable of being registered. Exceptionally, the guidance to authorities on registering a new town or village green does include some references to case law, albeit the citation of cases is inconsistent and truncated, and there are no hyperlinks to Bailii.org or elsewhere.
Inevitably in such a large rewrite, a number of questionable aspects have found their way into the text. For example, in advice to authorities on dealing with applications and proposals:
- • under amend your register, the advice is that, "If you make an amendment that isn’t a deletion, you must transfer the information on the whole sheet to a new form" — this advice is based on r.8(1) of (The Commons Registration (England) Regulations 2014), but this requirement applies only if the register sheet is non-compliant with the 2014 Regulations;
- • under site visits authorities are informed that: "You can visit unclaimed land without permission", but the definition given of what is unclaimed land makes the advice questionable even if one assumes that it is proper for an officer without a power of entry to enter onto land because the owner cannot be identified;
- • under land or rights that belong to the Church of England, authorities are advised on how to deal with "land or rights that belong to the church", but the advice is relevant only to land or rights that belong to a benefice (and which are held by the incumbent where one has been appointed), and not where the land or rights belong to the Church otherwise.
I submitted these observations to 'Is there anything wrong with this page?' today, so we'll see what happens.
Perhaps the most remarkable diminution in guidance is that specifically directed at applicants to register a town or village green, which is now contained in Commons registers: apply to record new events, under Apply to register a town or village green. This now comprises 43 lines: indeed, one will find more (82 lines) in the preceding section on Apply to register a statutory disposition (there is more about the mechanics of making an application in the separate guidance on Commons registers: how to apply to make changes). The potential applicant would be well advised (but is not advised) to refer to the somewhat more detailed guidance provided to the commons registration authority — or better still, to refer to the guidance published by the Open Spaces Society, Getting Greens Registered. Section 7.11 of version 1.3 of the guidance to applicants in the pioneer areas (not found online) published in 2013 provided over six pages on registering town or village greens, while version 1.3 of the guidance (available via the National Archives webarchive) to applicants elsewhere in England specifically on registering greens extended to 20 pages. For those who yearned for further detail, section 8.10 of version 1.43 of the guidance to commons registration authorities (available via the National Archives webarchive) published in 2011 filled 26 pages, much of it drafted by a well known barrister specialising in town or village greens cases.
Yet while it remains possible to access some earlier versions of the guidance, it is not kept up-to-date, and the lay reader will have no likelihood of locating it, let alone any means of knowing whether any particular aspect of it remains valid. The majority must therefore rely on what appears on gov.uk. It is not hard to understand why the new guidance lacks much of the content of the old — content requires revision, and revision requires resources. The law on registering town or village greens in particular continues to evolve through challenges in the courts, and what was written several years ago — even by a barrister — may be misleading today. Still, it is a pity that no signposts have been included to direct the lay reader to more fertile sources of guidance.