Defra today announced an extension of the pioneer implementation of Part 1 of the Commons Act 2006 from October 2014 (brief details here). Unsurprisingly, this won’t be a full implementation in the parts of England where Part 1 has not already been brought into force. But the pioneer arrangements will be extended to Cumbria and North Yorkshire. And elsewhere, it will be possible to apply to deregister land or to correct some mistakes made by commons registration authorities.
Part 1 is about updating the registers of common land and town or village greens. These were drawn up by commons registration authorities under the Commons Registration Act 1965, on the basis of applications made by commoners and others between 1967 and 1970. It then took around 40 years for Commons Commissioners to work their way through all the disputed applications, until their eventual abolition on 1 December 2010. But the 1965 Act was intended to be an interim solution: good for getting land registered, but without much thought given to what should happen next. The 2006 Act provides for correcting some (but only some) of the mistakes made in drafting the 1965 Act registers, and for maintaining the registers into the future.
Part 1 was brought into force on 1 October 2008, but only in relation to seven pioneer commons registration authorities: the counties of Devon, Cornwall, Kent, Hertfordshire, Herefordshire, Lancashire, and the borough of Darwen with Blackburn. No extension has been made since then, although a favourable review was published on the pioneer implementation in 2010 (available via here). So the implementation in Cumbria and North Yorkshire will bring in two of the counties with the most agriculturally active commons, and with the existing pioneers embrace around 70% of the common land in England — albeit only nine of the 150 commons registration authorities. Still, at a time of acute constraints on public resources, any progress must be welcome.
More controversially, the intention is to bring into force throughout England the provisions in Part 1 which enable application to deregister land under paragraphs 6 to 9 of Schedule 2 to, and section 19 of, the 2006 Act. This has the obvious appeal that it will enable some people whose property (sometimes their home or garden) is wrongly registered to apply to rectify the register, in some cases after a wait of many years since the original error was perpetrated under the 1965 Act, and more frustratingly, a wait of seven years since Royal Assent to the 2006 Act. But it’s also controversial, because the parallel provisions in paragraphs 2 to 5 of Schedule 2, to register some land which was wrongly excluded from registration under the 1965 Act, will have to wait until a future extension of the Act, at a date which remains uncertain. It will not be possible to otherwise update the registers in these partial implementation areas, except in accordance with the limited provisions contained in the 1965 Act.
Giving effect to this announcement will not be straightforward. The Commons Registration (England) Regulations 2008 must be updated (they weigh in at a hefty 82 pages), because the 2008 Regulations provide for only the pioneer implementation timetable, whereas the extension of Part 1 will call for two concurrent timetables, and common sense suggests that the Regulations need to be future proofed against further commencement plans. Plus a commencement order. Some tricky transitional provisions will be required consequential on applications to deregister land outside the areas of full implementation, to enable amendments to registers still held under the 1965 Act. These will presumably be modelled on those contained in The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, which still provide, and will continue to provide, for new town and village greens to be added to the 1965 Act registers outside the pioneer areas. And the already extensive guidance will need to be updated: the guidance to commons registration authorities (available via here) weighs in at a comprehensive 217 pages. So, plenty to happen between now and the planned commencement date, even for this partial further implementation.
