Defra announced this week that new registration arrangements for common land will come into force on 15 December 2014 — a couple of months later than the October commencement originally announced earlier this year, but the first significant advance since 2008.
The Commons Act 2006 (Commencement No. 7, Transitional and Savings Provisions) (England) Order 2014 brings into force Part 1 of the Commons Act 2006 in two new local authority areas, Cumbria and North Yorkshire, adding to the seven authorities which have been solitarily pioneering the legislation since 2008. That brings Part 1 into full effect in just nine authorities — but together, they represent some of the largest and most important areas of the country for agricultural reliance on commoning. In Cumbria and North Yorkshire, commoners, landowners and others will be able to apply initially free of charge to update the commons registers to reflect events which have taken place since registration in the late 1960s, but which have not yet been registered — such as the variation, surrender or severance of rights of common, or an exchange of land following a new road across common land.
But the order also brings into force certain provisions in Part 1 throughout the rest of England (i.e. where Part 1 is not yet in force as a whole), to enable anyone to apply to their local authority to deregister common land in limited circumstances. This is a controversial move: it comes eight and a half years after Royal Assent to the 2006 Act, and there had been criticism that owners of wrongly registered common land (and occasionally, town or village greens) were still not able to apply outside the pioneer areas to correct the errors. The order ends the delay: but only for the purposes of deregistration. Those who seek to register new common land, and indeed, those who are waiting for the commencement of Part 1 to introduce a system for keeping the commons registers up-to-date, must continue to wait. There is a risk that, by commencing selected provisions now, the pressure to roll out Part 1 as a whole will diminish.
New regulations have been made, the Commons Registration (England) Regulations 2014, to replace those made in 2008 and 2009. These are broadly consistent with the 2008 regulations: a future blog will report on what has changed. New guidance will replace the existing guidance (although there are few changes to the legislation), but this has not yet been published, nor have the new forms for applications under Part 1 (whether in the new pioneer areas, or for deregistration of land elsewhere).
Under regulation 17 of the 2014 Regulations, each local authority must appoint fees for applications under Part 1, and publish those fees on its website. It appears (although regulation is not explicit on the point) that if an authority has not published the fee on its website by the time an application is made, it cannot levy any fee at all (note that certain applications, specified in Schedule 5 to the 2014 Regulations, are in any case free of charge). It will be interesting to see whether around 145 local authorities which undertake commons registration functions (but are not among the pioneers) will all have published their tariffs by the time the first applications start to arrive. Some of the existing pioneer authorities are charging around £1,000 to deregister land, so presumably the arrival of an application with an authority which has no tariff on its website, and which must be processed gratis, will be a powerful incentive to rectify the omission.
