PannageMan

It is often said that the registers of common land (and town or village greens) drawn up under the Commons Registration Act 1965 (the 1965 Act) are out-of-date. And so they are: they were, after all, initiated by applications for registration made between 1967 and 1969. While it has remained possible to apply to modify the registers for certain purposes (and there is no charge for doing so), there has been no compulsion to do so, and many changes affecting what is shown in the registers have gone unregistered, leaving the registers an ever less comprehensive record of commons and the rights which are exercisable over them. (What follows refers to the registers of common land, but similar issues can apply to the registers of greens, albeit less frequently a cause for concern.)

Legally, this does not strictly matter. There are nine commons registration authorities pioneering the implementation of Part 1 of the Commons Act 2006 (Part 1), and where steps are being taken to update the registers. Outside these areas, the registers are “conclusive evidence of the matters registered, as at the date of registration (1965 Act, s.10, my italicisation). So, to the extent that the registers are now incomplete or inaccurate, the registers must be read alongside any other evidence of events subsequent to 1969 which affects the veracity of what is shown in them. For example, a commoner (the owner of a right of common) may have entered into a deed with the owner of the common, surrendering the right to the landowner, which has the effect of extinguishing the right for all time. The extinguishment of the right may (and should) be registered (under s.13(a) of the 1965 Act), so as to cancel the registration of the right in the register. But there is no obligation on anyone to do so: indeed, an application for such and similar purposes may be made only by a person having an ‘interest’ in the matter — see r.29 of the Commons General Regulations 1966 (SI 1966/1471) as amended by SI 1968/658 here. To any assertion that the register shows that the right exists, and were conclusively in existence ‘as at the date of registration’, the former commoner, or more likely the common owner, need only produce the deed, to show that the register is out-of-date and, on that matter, what is shown in the register can be left out of the reckoning. That may be the correct position, but it can be very frustrating for those who use the registers and expect them to present a comprehensive picture.

Part 1 seeks to ensure that the 1965 Act registers are brought up-to-date, to rectify the omitted amendments of the last 45 years, and kept that way. It does this, not generally by compelling applications to amend the register, but by inducing them. Where it has been brought into force, in the nine pioneer areas, it does this in several ways:

• by providing that rights of common which are capable of registration, but are not registered, are extinguished (at the end of an initial transitional period) (para.3 of Sch.3);
• by providing that various other things affecting what is shown in the registers (such as the creation or extinguishment of rights of common) can have effect only if done, in a prescribed form, by application for registration (ss.6–13) — in effect, by ensuring that these things can no longer be done ‘off register’;
• by abolishing certain mechanisms by which common law events can affect what is shown in the registers (i.e. the creation of rights of common by prescription, and the extinguishment of rights of common, ss.6 and 13);
• by re-enacting provision for the conclusiveness of a right of common entered in the register, upon its registration (s.18;
• by providing that statutory dispositions affecting what is shown in the registers (such as an exchange of land required to facilitate a road scheme across common land) do not operate at law so as to affect the status of the land, nor any rights exercisable over it, until the disposition is registered (r.44(2) of the Commons Registration (England) Regulations 2014, the 2014 Regulations, SI 2014/3038);
• an exception to the generality of the absence of compulsion, by placing a duty (generally on public authorities) to register the effect of a statutory disposition (s.14 given effect by para.8(2) of Sch.4 to the 2014 Regulations);
• by providing that other legislation which refers to common land or town or village greens, may be amended by secondary legislation (s.54), so that those references apply only to common land, or greens, which are registered under Part 1 of the 2006 Act — this last power is likely to be exercised only when Part 1 has been applied to the whole of England, the transitional period has expired, and reasonable opportunity has been afforded to apply to amend the register to deregister wrongly registered land under Schedule 2 or section 19.
• by ensuring that notice of applications or proposals under Part 1 affecting rights exercisable over registered land must be served on those parties who have declared their entitlement to exercise rights of common, and so updated the register to provide a direct connection between the registered right and the commoner entitled to it (para.1(a) of Sch.7 to the 2014 Regulations).

In the last case, such declarations have been facilitated by r.43 of the 2014 Regulations, and may be made so as to address the obvious drawback that the register does not directly identify the owner of a right of common attached to land, but only the land to which the right is attached. The owner or occupier of that land may declare to the registration authority his or her entitlement to exercise the right by virtue of that ownership or occupation, and if the authority is satisfied with the evidence provided, it will modify the registration to show details of the declaration. A declarant is guaranteed to be notified of applications and proposals affecting the land, whereas the difficulty in identifying other commoners from the register, and particular those entitled to dormant rights, means that no such obligation is owed to them.

By these means, the intention is that, subject to full implementation (yet to occur outside the nine pioneer local authority areas) and an initial transitional period, the registers should become, and subsequently remain, up-to-date. It is inevitable that, even then, mistakes will be made, and amendments for which applications should be made to amend the registers will not be made. But, generally, the law will assume, for the first time, that the register is correct, and that the consequences of an oversight will fall on the parties who made the mistake, rather than the world at large which, unsurprisingly, expects the register to be correct.

But I have already alluded to one significant respect in which the registers are bound to disappoint. By and large, the registers will not directly identify those who ‘own’ (technically, those who are entitled to exercise) rights of common, even though the registers will be conclusive about what rights exist. As we have seen, provision for declarations of entitlement to rights of common will help to address that omission. But the omission is itself often a matter for surprise and criticism, and merits some explanation. That will be the subject of a future blog.

Defra published today arrangements for claims arising from the mistaken methodology adopted for the payment of the Single Payment Scheme on common land, referred to in a previous blog and explained in the Defra policy announcement.

As the announcement is closely connected with my role in Defra, please refer to the gov.uk website for further information.

A fascinating insight into landowners’ concern with the workings of the Commons Act 2006 in the pioneer areas, is revealed today in an EIR (Environmental Information Regulations 2004) disclosure.

The correspondence records the dissatisfaction of local landowners and farmers in the Penwith peninsula of Cornwall whose land is subject to applications for the registration of the land as common land under paragraph 4 of Schedule 2 to the 2006 Act. Paragraph 4 was enacted to revisit some of the more egregious mistakes of the registration process under the Commons Registration Act 1965 — most often, where applications to register common land were rejected by a Commons Commissioner on a false understanding of the law relating to waste land of a manor, which was corrected by a judgement of the House of Lords too late to influence the outcome in most cases. Only land which was the subject of a provisional application for registration under the 1965 Act can be the subject of an application today under paragraph 4.

The disclosures are quite frank, and show how local landowners’ concerns have been raised at Ministerial meetings with the Country Land and Business Association. PannageMan will not be quoting selectively from the disclosures, but a careful perusal will reveal some interesting and surprising comments about the application process, the landowners’ interest in the application land, the effect of a successful application on the management of the land and the mangement of sites of special scientific interest, and the National Trust’s position in relation to such applications affecting its land. Read on… .

A recent application (see the notice for Church Hill Common, Ringland) in Norfolk under Part 1 of the Commons Act 2006 has highlighted the new opportunity to get land registered as common land, or as a town or village green, even in the majority areas of England which are not pioneering the full implementation of Part 1.

Part 1 of the 2006 Act provides for new arrangements for keeping and maintaining the registers of common land and town and village greens in England and Wales, but in England, Part 1 has been fully brought into force only in nine pioneer commons registration (i.e. local) authority areas (see the list in Sch.1 to the Commons Registration (England) Regulations 2014), and in Wales, not at all. Elsewhere, Part 1 has been commenced for particular purposes only: primarily, to register new town or village greens under s.15, and, with effect from 15 December 2014, to deregister certain wrongly registered land — a fuller explanation can be found in my November 2014 blog.

At the time, in my blogs of November 2014 and December 2014, I mistakenly assumed that the commencement order for these provisions (the Commons Act 2006 (Commencement No. 7, Transitional and Savings Provisions) (England) Order 2014) brought s.19 into force (apart from the pioneer areas) solely for the purposes of correcting mistakes in the register made by a commons registration authority so as to deregister wrongly registered common land. Such a mistake might have been made where at the time (between 1967 and 1969) of provisional registration of land as common land, the map of the common supplied by the applicant for registration was incorrectly transposed by the authority into the register to include land not in fact shown on the application map (this occasionally happened where the application map excluded island cottages within the common, but the authority failed to pick these up). There is no doubt that such land may now be the subject of an application for amendment of the register under s.19 — and not before time, since at least 45 years will have elapsed since the mistake was made.

The commencement order does indeed bring s.19 into force for the limited purpose of para.(a) of subs.(2): “correcting a mistake made by the commons registration authority in making or amending an entry in the register” (see art.3(2)(b) of the commencement order), and then only on an application made by any person (so that the authority cannot make a proposal to amend the register on its own initiative — see the exclusion from commencement of s.19(4)(a) in art.3(2)(b)). But there is no restriction on the scope of an application for the purpose of s.19(2)(a): so an application could be made equally if the authority’s error in transposing the original application map was to omit land shown on that map. Or if the authority, in registering a provisional right to graze 100 cattle, actually registered a right for 10 cattle.

The result is a little surprising, because the only other substantive provisions in Part 1 which have been brought into force (again, outside the pioneer areas) are paras.6 to 9 of Sch.2 which enable the deregistration of land (see art.3(2)(d) and (3)(b) of the commencement order). Indeed, art.3(3)(a) of the commencement order, which states that s.19 is brought into force “for the purpose given in section 19(2)(a) (correcting a mistake made by the registration authority in making or amending an entry in the register)”, appears to be largely redundant, because that constraint has already been achieved by art.3(2)(b). And note that applications for the purpose of s.19(2)(a) are free: see the entry for s.19 in Sch.5 to the the 2014 Regulations.

Thus it is that the application for Church Hill Common, Ringland is to add land to the register which was excluded from the original provisional registration which has long since become final. If, indeed, the omitted land was contained within the original application map, and if the commons registration authority (Norfolk County Council) is satisfied that the exception in s.19(5) does not apply, then the outcome will be the addition of new common land to the Norfolk registers, even though Norfolk is not one of the pioneer authorities. Similar applications seem likely elsewhere.

And the s.19(5) exception? This easily overlooked gloss on s.19 says that: “A mistake in a register may not be corrected under [section 19] if the authority considers that, by reason of reliance reasonably placed on the register by any person or for any other reason, it would in all the circumstances be unfair to do so.” This exception might apply if, for example, someone had bought land having confirmed that it was not registered common land nor town or village green, had no reason to suppose that a mistake had been made in giving effect to the original provisional registration, and now would suffer significant detriment if the omitted land were registered. There may be some precedent for the measure of ‘unfair’ness in s.19(5), to be found in s.14 of the Commons Registration Act 1965, which enables rectification of a registration made under that Act if the court considers it ‘just’. Those who wish to explore the test of justness, and by analogy, the exception of unfairness, would do well to look at the judgment of the Supreme Court in Taylor v Betterment Properties (Weymouth) Ltd and Adamson and others v Paddico (267) Ltd, which explored this issue in detail, in relation to applications from two landowners to deregister two different town greens under s.14(b) of the 1965 Act.

Defra has made an order to establish the Bodmin Moor Commons Council (The Bodmin Moor Commons Council Establishment Order 2015). The order follows consultation, launched in February 2015, on a draft order. You can see the consultation paper, the draft order, and the outcome of the consultation, on gov.uk. For more about the order and the background, see my earlier blog on the draft order, and the explanatory memorandum.

In deciding to make the order following the consultation, the Secretary of State must be satisfied that there is substantial support for it, having particular regard to responses from those (such as commoners and landowners) with a legal interest in the land. It seems that there is little doubt about that, for 202 responses were received, of which 96% were in favour; of those 166 respondents who demonstrated a legal interest, again 96% were in favour. This is a remarkable response rate for a highly focused consultation, although we are not told, and perhaps no-one yet quite knows, how many persons are entitled to exercise rights of common on the Bodmin Moor commons, and therefore what proportion expressed support.

The Bodmin Moor Commons Council will be the second council to be set up under Part 2 of the Commons Act 2006, although the third council in England (the Dartmoor Commoners’ Council was established under a local Act, the Dartmoor Commons Act 1985). The council comprises 24 to 26 members, most of whom are elected by the active or inactive commoners with rights of common exercisable over the Bodmin Moor commons. Further council members are appointed by the landowners, and there is a power to co-opt up to two further members. There is an initial electoral process between the coming into force date of 1 September 2015, and the date of 1 March 2016 on which the council is established, so that the council’s membership is fully constituted by the latter date. The council will have powers to manage the grazing, vegetation and rights of common on the Bodmin Moor commons, and its most potent tool for this purpose is a power to make rules, or byelaws: for example, a rule may prohibit the turning out of animals by a person without a right to do so, and therefore attempt to tackle grazing by farmers with no rights of common (or those who are exceeding their rights) — although the grazier will first have to be identified. Breach of a rule may be made a criminal offence: for this reason, such rules must first be approved by the Secretary of State.

The order as made has been slightly amended from the version on which consultation took place (whereas an affirmative resolution order laid in draft before Parliament cannot be amended after approval by Parliament, it seems there must be some flexibility to amend the consultation draft, and it would be odd if the Secretary of State could not respond to any comments made during the consultation, other than to withdraw the order and begin again). Some minor errors relating to the provision numbering and duplicate register units have been addressed. More significantly, whereas the draft contained no provision about regulations under the Commons Act 1908, art.11 now abolishes any such regulations. The 1908 Act enabled committees of commoners to be elected to make such regulations to control the turning out of entire animals, and there is some evidence that regulations were indeed made in relation to some of the Bodmin Moor commons. However, PannageMan understands that evidence for the precise form of any regulations still in force was elusive, despite a search of National Archives files (see for example MAF 235/201), and art.11 therefore has general effect in revoking any extant regulations, rather than, as would be usual, revoking specific regulations.

No modification has been made to the order in respect of para.13 of Sch.2, by which the owners of the Bodmin Moor commons are still required to act in unison in appointing their four representatives, So there remains no provision for a situation in which the owners cannot agree on a slate of four appointees.

The council will come into existence on 1 March 2016, after the initial electoral process has been concluded, and will then be free to embark on bringing new management to the Bodmin Moor commons, for the first time since manorial management structures faded away over a century ago, and 20 years after the Bodmin Moor Commons Bill was presented to Parliament seeking similar powers through primary legislation.