PannageMan

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.

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.

Most minor statutory bodies might hope to stay out of the courts for a lifetime, or at least, for the term of their existence, which may well be shorter. The Conservators of Wimbledon and Putney Commons have however appeared four times in the higher courts in the last few years. First, they eventually lost a case brought by a local resident, Michael Housden, who sought and won a declaration from the Court of Appeal (having failed before the Adjudicator to HM Land Registry and in the High Court) that he was entitled to a right of way across Wimbledon common to reach his home in Southside Common. (The Adjudicator was no less than Edward Cousins, the editor of Gadsden on Commons and Greens, but his finding, and that of Judge Roger Kaye QC in the High Court, were overturned on appeal.)

More recently the Friends of Putney Common have brought an action in the High Court and subsequently the Court of Appeal, to challenge the decision of the Conservators that new easements could be granted by them over Putney Common in favour of Wandsworth Borough Council to facilitate access to a development on the old Putney hospital site adjacent to the common. You can read a brief background and a report of the unsuccessful High Court challenge in an earlier blog. The Friends therefore appealed to the Court of Appeal. Nicholas Evans is a co-founder of the Friends of Putney Common, and the action was brought in his name, in what (despite my bafflement in my blog of the earlier case) turns out to be a judicial review. Oddly, the case is not listed conventionally as R (Evans) v Conservators, although that is probably the fault of the parties rather than the court. The council was an interested party in the case.

Both Housden and Evans concern the power of the Conservators to grant an easement (i.e. a private right of way, in this case over part of the common, in favour of the owner of a neighbouring piece of land). Ironically, the Conservators first went into battle because Mr Housden claimed he had acquired an easement across the common through long use, and wanted to have it recorded on his Land Registry title — this is how most access ways are acquired across common land, by a mechanism approved by the House of Lords in 2004 (Bakewell Management Ltd v Brandwood and others). The Conservators said that was impossible in relation to Wimbledon and Putney commons, because the commons are protected under a local Act, the Wimbledon and Putney Commons Act 1871, which forbad the Conservators “to sell, lease, grant, or in any manner dispose of any part of the commons”, and granting an easement was just such a prohibited disposal. However, the Court of Appeal found for Mr Housden, noting that the grant of an easement was not a disposal of a ‘part’ of the commons, but simply enabling a right of way over the common. Indeed, the right of way had been in long use, and there was no suggestion that finding for Mr Housden would allow him to upgrade the track by putting down a tarred surface. The court noted that “the Access Way would not cease to be an open space” (para.23), and inferring a power for the Conservators to grant such an easement was “consistent with the conservation of the commons” (para.24).

Having lost that case, the Conservators did not go away empty handed (though no doubt the costs were colossal). They were now cognisant that they possessed a very potent power to grant easements to access neighbouring property which might otherwise be landlocked — in effect, they might control the only means of access to development sites in a hugely valuable part of London. Such was the case with the old Putney hospital site.

The site was formerly served by a hodgepodge of access ways across the common, and indeed some land used for car parking was on the common itself. But the existing access ways were unsatisfactory, and the Conservators agreed to grant a new means of access, to be tarred, and protected by bollards, mounds and a barrier, while the existing access ways would be ‘erased’. The Friends of Putney said that the Conservators were now exceeding the powers involuntarily won in Housden, because the new means of access would be an intrusion on the common, and the Conservators entirely lacked powers to allow the establishment of the bollards, mounds and barrier. In effect, the Conservators were permitting the inclosure of this part of the common, contrary to the purpose of the 1871 Act. Indeed, all parties appeared to accept that the new road would amount to inclosure.

The Court of Appeal was unsympathetic. It noted that Housden had decided that the grant of an easement was not prohibited by the 1871 Act, and the Conservators therefore had only to act in accordance with their general statutory objectives to “keep the commons open, uninclosed, and unbuilt on…except as otherwise in this Act expressed”. The Act conferred a specific power on the Conservators to “make and maintain such roads and ways as may be in their judgment necessary or proper”, and the court concluded that, even if the means of access to the Putney hospital site amounted to inclosure, it was a permitted derogation under the power to make roads.

Despite the absence of any statutory power conferred on the Conservators to erect bollards, mounds and barriers, the court noted that the Conservators were under a duty to use all lawful means to protect the commons: indeed, the byelaws prohibited unauthorised access onto the common with vehicles (the irony that the judgment would facilitate driving across the common apparently escaped the court). So the Conservators could erect the bollards etc. in furtherance of its general duty.

The court rejected the obvious view that the Conservators’ power to “make and maintain such roads and ways as may be in their judgment necessary or proper” was confined to such roads and ways as might be ‘necessary or proper’ for the enjoyment of the commons. After all, the power appears among a number of other powers (to ‘improve’ the common, to plant trees for ornament, to build lodges for common-keepers) all the rest of which are clearly orientated towards the Conservators’ functions to protect the commons and preserve them as open spaces. Instead, the court concluded that the Conservators were entitled to look at the overall result of the deal with the council, which would see other misused areas restored to open space, and the avoidance of any revival of the original right of way to the site. If that result was consistent with the Conservators’ functions, then it was lawful.

Comment: Even if one accepts the principle apparently (if not obviously) established by Housden that the Conservators have a power to grant any easement over the common which is consistent (taken as a whole) with their functions, it’s hard to see that their power to “make and maintain roads” is one which has any purpose other than to create such roads to enable the public to enjoy the common, and the Conservators to maintain it. By way of contemporary comparison, s.7(5) of the Commons Act 1876 (enacted five years after the 1871 Act) enabled orders for the regulation of commons to contain provision “for the benefit of the neighbourhood”: “That carriage roads, bridle paths, and footpaths, over such common are to be set out in such directions as may appear most commodious”, which was clearly intended to be relevant only to ways for public enjoyment or need.

And it seems likely that the Conservators intend neither to make nor maintain the access road to the hospital site: that will presumably be done by the council. Which makes it all the harder to understand how the statutory power is relevant.

There is nothing in the Act about installing bollards, mounds and barriers. The court thought the Conservators could put these in so as to protect the common. But that raises the paradox that none of these things would be necessary, and the common would not need protecting in this particular instance, if the easement were not granted in the first place. Besides, if the Conservators have unrestricted powers to protect and maintain the common, what is the point of the specific powers conferred for those purposes? It does seem that this constraint was swept aside by the court as a mere trifle which rather got in the way.

The court appeared to be influenced by the vicarious nature of the challenge, explicitly noting at the end of para.28 that the Friends were opposed to the redevelopment of the Putney hospital site, and implying that this action were only a means to an end, rather than a concern for the conservation of the common.

But the reported £350,000 value of the easement is a strong incentive to go to court — even if the core of the Conservators’ case is a power to grant an easement which they went to court to oppose just a few years ago. It is understood that the Friends are contemplating an appeal to the Supreme Court, though it seems unlikely that the Court would wish to review a case with strictly local parameters.

Finally, it’s worth noting that Putney common was not registered as common land under the Commons Registration Act 1965. That means that, whereas the consent of the Secretary of State is required for works on registered and certain other common land (including laying out sealed roads) under s.38 of the Commons Act 2006, including the vast majority of London commons managed under schemes made under the Metropolitan Commons Act 1866, it is not needed for Wandsworth and Putney commons. However, even if the commons had been registered, it is likely that the specific power of the Conservators to make roads across the commons would have waived the requirement for consent, by virtue of subs.(6)(a) of s.38 — provided of course that it is the Conservators who are laying out the road.

Until the Commons Act 2006 came into force, a commoner — a person entitled to exercise a right of common — could probably lease or let the right to a third party. Indeed, the commoner could sever the right (that is, sever it from the land to which it was attached) and sell it as a right of common ‘in gross’. The freedom to trade in rights of common was confirmed by the judicial committee of the House of Lords in Bettison and Others v. Langton and Others.

The freedom was not entirely welcome: the potential to separate rights of common from the farm holdings to which they were attached, and which were in turn proximate to the common, was one of the drivers behind the 2006 Act. And so the Act prohibited severance (see s.9) from the date on which the relevant clause was published in the Bill: 28 June 2005.

The Act enabled the Secretary of State, and in Wales, now the Welsh Ministers, to prescribe temporary exceptions to the prohibition on severance. In England, these exceptions are contained in the Commons (Severance of Rights) (England) Order 2006 (which also had retrospective effect on being made). The exceptions (art.2(1)) allow for a temporary let of a right to graze animals for up to two years, renewable, and a let of the land to which a right of common is attached (for any period), without the rights (so that the rights would be retained by the owner of the land to which the rights are attached). The order remains in force today.

Strictly speaking, the order only enables the temporary letting of a right of common to graze animals where the letting is otherwise prohibited by the ban on severance in the 2006 Act. If the right could not have been temporarily let even before the 2006 Act, neither the Act, nor the order, enables it to be let now. This is a fairly obscure class, but it includes appendant rights (which were not within the scope of the House of Lords judgment in Bettison). Classifying rights of common into appendant and appurtenant rights is a pretty obscure exercise in itself, and it’s unlikely that this distinction will remain of relevance for much longer, if indeed it remains relevant now. And the order explicitly does not authorise the letting of rights other than for grazing animals. Moreover, certain unquantified rights (such as a right to collect firewood for use in a domestic hearth) were incapable of being let even before the prohibition on severance.

In Wales, the National Assembly for Wales (which at that time had responsibility for making secondary legislation, during a brief period when, in Wales at least, the legislature carefully scrutinised all secondary legislation) made the Commons (Severance of Rights) (Wales) Order 2007, which was similar — very similar — to the 2006 order, but provided for temporary lets of up to three years, renewable.

Until, that is, Saturday just past, 1 March, when the Commons (Severance of Rights) (Wales) Order 2014 revoked the 2007 order, and prescribed (art.3(1)) for lets of up to five years, still renewable. The change will doubtless accommodate farmers who are active commoners, but who have no, or insufficient, rights of their own and lease in the rights from another commoner. While there was nothing to stop this happening under the 2007 order, the short term nature of the lets would have been an impediment to signing up to longer term agri-environment agreements on the common (which last at least five years), since a commoner with a two year let would not be able to show sufficient long-term interest in the common. The change will also facilitate claims for direct payments on commons in Wales, since a five year let will ensure that the commoner has sufficient security to justify an investment in entitlements.

One interesting aspect of the new Welsh order is that any agreement for a temporary let must contain provision requiring that the owner of the land to which the right is attached is to notify the commons registration authority, the common owner, the commoners’ association (if there is one) and Natural Resources Wales (if the common is a SSSI) of the terms of the agreement (art.4). Note the assumption seems to be that the agreement will be made with the owner of the land to which the right is attached, rather than the occupier (who may have the use of the rights under a tenancy). Quite what the commons registration authority does with the information notified to it is not stated: the authority has no power to modify the register, and is under no obligation to maintain the information notified in any other place. One might also speculate on the precise powers to prescribe for notification, since the 2006 Act only refers (para.2 of Sch.) to leasing and letting in accordance with provision made by order, which suggests only a power to regulate the terms of the lease or let. The Act does confer a specific power to provide for ‘form and content’ of the let or lease, but notification is neither a matter of form nor content. Still, it’s not hard to see merit in at least providing for the possibility of the information being held in a collected form, provided at least one of the bodies notified does actually maintain that collection.

Alun Davies, the Welsh Government’s Minister for Natural Resources and Food, has announced plans to convert the commons registers in Wales to electronic form (here, or here if you’d like to read it in Welsh).

At present, the registers of common land (and those of town or village greens) are contained in bound paper registers held by 150 commons registration authorities in England, and 22 in Wales. The registers were compiled in response to applications made in the late 1960s, and contain typewritten forms and old ‘county series’ Ordnance Survey maps. Updating the registers in response to applications is slow and cumbersome: authorities no longer have the blank forms or typewriters to fill them out, while the maps are hopelessly out-of-date. Conversion to electronic form is likely to mean that the maps are held as part of a Geographical Information System, although this ought to contain safeguards to ensure that the data are protected against unauthorised alteration, and to ensure an audit trail of changes. The register forms will also be migrated to an electronic database, to allow more flexible handling and amendment.

Conversion of the registers will be challenging, particularly as regards the maps. These were frequently drawn up by council clerks with no cartographic skills, and it shows. Draughtsmanship frequently falls short of the then regulatory requirements (indeed, two Welsh authorities felt obliged to procure costly local Acts of Parliament to correct errors). Boundaries are often poorly drawn, perhaps with a thick pen, or failing to coincide with an obvious physical feature such as the moorland wall. Section 25 carries a strong implication that regulations will provide for consultation on draft converted maps, so that those potentially affected can see that the job has been done conscientiously. But it will be hard to address ambiguities in the paper maps with pragmatic resolutions, while avoiding redrawing boundaries for which the conversion process affords no authority, where it seems ‘obvious’ that a mistake was made.

It’s not clear, but the announcement contains an implication that the new electronic registers will be centrally co-ordinated or even managed, so that changes made by Welsh commons registration authorities are uploaded to a database held by the Welsh Government. That may be an ambitious agenda within the constraints imposed by section 25 of the Commons Act 2006, which only enables the existing registers to be converted to electronic form, but still on the basis of local authority registers. Perhaps new legislation is planned: even if not, the Welsh Government will need to make appropriate regulations under section 25.

No plans have yet been announced to implement electronic registers in England. Section 25 enables implementation on either a voluntary or mandatory basis (in other words, commons registration authorities can be enabled to convert to electronic form, or required to), but under current Government policy, either approach would require additional funding to local authorities to underwrite the costs of conversion, and that is unlikely in the present economic climate.