The Ministry of Defence has confirmed its plans to deregister Warcop common, which is part of the Warcop military training area in Cumbria. The announcement this week concludes a consultation launched over two years ago.

Warcop and adjacent commons are owned by the Secretary of State for Defence, and are used for live firing training. For many years, commoners continued to graze their livestock on the commons, but worked with range officials to clear stock on training days. However, in order to confer greater control over the use of the commons, the Ministry embarked on a compulsory purchase of rights of common, confirmed in 2003 by the Secretary of State after a public inquiry. As that time, the Secretary of State gave undertakings that the acquisition of the rights would not lead to the deregistration of the common. He also undertook, if training use ceased, to then grant new limited rights of common which would protect the status of the land as common land (as an example of what might have been granted, the right might have been to graze one sheep on one day each year).

The Ministry considered that, by extinguishing the commoners’ rights, the land had ceased to be common land, but was willing to allow the land to remain registered under the then legislation — the Commons Registration Act 1965. Its view appears to have been that the registration became a nullity, the true position being that the status of the land as common land had been removed, but the out-of-date registration lingered in the registers. That is because the 1965 Act contains few mechanisms to allow or require the registers to be updated, and there can be no guarantee that what is shown in the registers is indeed the correct position. However, the Ministry subsequently became concerned that the Commons Act 2006 interfered with the status of the commons and the undertakings given. This is because the 2006 Act adopts a proactive approach to maintenance of the registers and requires transactions affecting common land and rights exercisable over common land to be done on-register. This means that, from the Ministry’s point of view, once the 2006 Act came into force in Cumbria, the commons would have the conclusive status of registered common land, and what had been done in the past would be irrelevant in terms of the contemporary status: what is shown in the register would prevail.

It’s not clear why two and a half years have elapsed between the consultation and the announcement. It seems that the announcement has been left until the last possible moment, for Defra Ministers are poised to bring Part 1 of the 2006 Act into force in Cumbria and North Yorkshire before the end of the year — whereupon the Secretary of State would no longer be able to apply to deregister the commons. The Ministry’s responses to points made by consultees appears to have been drafted so long ago that it overlooks some more recent arguments in its favour. In its response to the consultation, the Open Spaces Society said as regards implementation of Part 1 beyond the existing seven pioneer local authority areas that “there is no certainty when or if this will take place”; in its response, the Ministry acknowledges this, and merely adds: “It is necessary that the MOD plans now before the changes come into force”, without noting Defra’s plans, announced in January 2014, to extend Part 1 to Cumbria.

In its decision to restructure undertakings, the Ministry has announced that it: “is now applying to Cumbria County Council (the commons registration authority for Cumbria) to de-register the land as common land”. It will need to be quick: once Part 1 is brought into force in Cumbria, the power to apply to the council under section 13(a) of the 1965 Act to deregister will no longer have effect (section 13(a) was in fact repealed in 2006, but subject to a saving in art.3(3) of SI 2006/2504). It seems likely that the imminent commencement order for Part 1 will itself contain a saving for applications already made under the 1965 Act. The application may not receive wide publicity, because regulation 27 of the Commons Registration (General) Regulations 1966 requires in this case only that notice of the application should be sent to the district and parish councils.

In its application to the council, the Ministry will need to show that the commons are no longer common land subject to rights of common, nor waste land of the manor. The first criterion is easily demonstrated: the rights were extinguished by the 2003 compulsory purchase. In the consultation, the Ministry asserted that the commons were not waste of the manor (para.2.7); in its response, it explains the previous assertion by adding that the commons are subject to grazing agreements, which render the land no longer waste. In a much cited case from 1859, Attorney General v Hanmer, waste is considered to be “the open, uncultivated and unoccupied lands parcel of the manor”. It can only be said that there are conflicting views on whether the mere grazing of extensive, unenclosed land is sufficient to cause the land to cease to be ‘unoccupied’. In Defra’s Guidance to commons registration authorities and the Planning Inspectorate for the pioneer implementation of Part 1 of the 2006 Act (January 2014, via here), it advises (in the context of applications to register waste land of the manor under paragraph 2 of Schedule 2 to the 2006 Act), “In Defra’s view, land does not cease to be waste merely because it is subject to a tenancy, lease or licence whose sole or principal purpose is to enable the land to be extensively grazed. Occupation requires some physical use of the land to the exclusion of others: such might occur if the land were occupied by a quarry, or were improved by a tenant (e.g. by cultivating and reseeding moorland) for his own exclusive use and benefit. Nor does Defra consider that shared upland grazing of manorial origin will have ceased to be waste land merely because there is provision for grazing the land contained in several tenancy agreements.” So it seems that Departmental views differ. It remains to be seen whether the council agrees with the Ministry’s position, and as the Ministry observes, the council is not bound by the Ministry’s position — indeed, the council must form its own view.