PannageMan

Some 20 or 30 years ago (the details are now a little hazy), the then Department of the Environment commissioned a huge study of the common land in England. The contract was let to the Rural Surveys Research Unit (RSRU) at the University of Wales, Aberystwyth, and was done by a team led by Prof. John Aitchison. Although the start date is uncertain, the final report was not presented until summer 2000 — by which time digitisation of large datasets had begun to catch up with the project, although it didn’t start out like that. The report is generally referred to today as the ‘biological survey of common land’, although that appellation does not do justice to the breadth of the data gathered.

The outputs were colossal, and comprised:

• a database of every registered common in England, with details of size, location, registered ownership, rights of common, natural context and other aspects;
• a series of county reports focused on the nature conservation character of common land in that administrative area (those which were prepared by the RSRU in electronic format, about half, are available via the National Archives web archive of the Defra website);
• a series of county volumes containing datasheets for each of the commons in the administrative area;
• a national overview report of the project.

The database was exported into an Excel spreadsheet, and this is still available, now on gov.uk; however, the export truncated all long text fields in the database, so that the spreadsheet is valuable for the numeric data, but frustratingly incomplete for verbal analysis. This last defect has now been rectified, as the data, including the original Microsoft Access database, are now available for download on data.gov.uk. The publication of the data is part of the Government’s drive to make more public data available online, and one expectation is that people will be able to make innovative use of the data. One early example of that is the common-land.com, which converted the Excel spreadsheet into html form for presentation on a dedicated website. Now that the dataset is available in its original unabridged form, perhaps others will find new uses for the data?

Incidentally, the RSRU performed a similar, independent survey of town and village greens, with the support of the Women’s Institute whose members conducted local surveys of individual greens. One of the outputs of this survey is the database of town or village greens (in pdf on gov.uk and in Excel on the National Archives web archive), although this too suffers from truncation.

Government guidance on commons and greens, most notably on applying to update the registers of common land and town or village greens held by certain local authorities (i.e. ‘commons registration authorities’), has undergone the transformation to ‘smarter guidance’, part of a Government-wide project to reduce the volume of all public sector guidance, and to improve its quality, consistency and accessibility.

The key to the new guidance is the launch page, Common land: guidance for commons registration authorities and applicants, which contains links to specific pages of guidance in two groups, targeted at commons registration authorities, and at the public who may have an interest in the registers.

The original guidance was published in two volumes targeted at the same two interests. Each volume was pretty lengthy: the guidance to authorities (ver. 2.0 is currently still available on gov.uk, and in any case, via the National Archives) tallied at around 180 pages. The new guidance, which is advertised as at ‘beta’ stage, is divided into several now much briefer themes. Guidance to authorities is available on:

• — maintaining the registers
• — dealing with applications and making proposals
• — dealing with new event applications
• — dealing with applications and proposals to correct mistakes
• — dealing with applications and proposals to correct historic mistakes

And the same themes are available to anyone looking to make such applications (there is, understandably, no parallel theme for maintaining the register):

• — apply to make changes
• — apply to record new events
• — apply to rectify the registers
• — apply to record historic events

Much has changed. Indeed, the switch to ‘smarter guidance’ is not the first occasion on which the guidance has been pared down: version 2.0 replaced version 1.43 in December 2014, and at that time excluded guidance about commons councils, the protection of common land, local authority schemes of regulation and management, ‘intervention’ (enforcement), vehicular access over common land and greens, deregistration and exchange, and public access rights over common land, all contained in chapter 3, which is as close as Defra has got to fulfilling the Parliamentary commitment to publishing a circular on common land (Lords Hansard, 30 Nov 2005, Col.281) — albeit the guidance has never formally applied outside the commons registration authority areas pioneering Part 1 of the Commons Act 2006.

The new guidance is concise, even terse, and lacks an explanation or context: the commons registration officer is informed, for example, that two authorities may enter into a straddling agreement as regards land straddling the authorities’ common boundary (so that “only 1 [sic] of you’ll [sic] be responsible for the registration of that land”), and even that agreements made before 1 April 1974 expired on that date — but not the legislative authority for such agreements, nor the legislative cause of the demise of pre-1974 agreements. This isolation from the legal context is found throughout the guidance (indeed, it’s common to smarter guidance generally) and may make it less daunting and therefore helpful to the casual reader, but it may also impair its utility to a local government officer who wishes to understand, and justify, why the guidance is framed as it is. Nor does the new guidance offer the local government officer any interpretation or explanation of the legislation beyond the bare recital of its requirements. So, for example, the guidance to authorities on dealing with applications to register a statutory disposition (such as a compulsory purchase order affecting common land) states that: “Statutory dispositions normally come into effect after the date on which they’re confirmed. You’ll need to check its [sic] terms to find the date on which it has or will come into effect, as you can only register land or rights after that date.” But there is no illustration of what this might mean in a particular case, or what to look for in the statutory disposition, as there was previously, to ensure that the instrument is effective and capable of being registered. Exceptionally, the guidance to authorities on registering a new town or village green does include some references to case law, albeit the citation of cases is inconsistent and truncated, and there are no hyperlinks to Bailii.org or elsewhere.

Inevitably in such a large rewrite, a number of questionable aspects have found their way into the text. For example, in advice to authorities on dealing with applications and proposals:

• under amend your register, the advice is that, “If you make an amendment that isn’t a deletion, you must transfer the information on the whole sheet to a new form” — this advice is based on r.8(1) of (The Commons Registration (England) Regulations 2014), but this requirement applies only if the register sheet is non-compliant with the 2014 Regulations;
• under site visits authorities are informed that: “You can visit unclaimed land without permission”, but the definition given of what is unclaimed land makes the advice questionable even if one assumes that it is proper for an officer without a power of entry to enter onto land because the owner cannot be identified;
• under land or rights that belong to the Church of England, authorities are advised on how to deal with “land or rights that belong to the church”, but the advice is relevant only to land or rights that belong to a benefice (and which are held by the incumbent where one has been appointed), and not where the land or rights belong to the Church otherwise.

I submitted these observations to ‘Is there anything wrong with this page?’ today, so we’ll see what happens.

Perhaps the most remarkable diminution in guidance is that specifically directed at applicants to register a town or village green, which is now contained in Commons registers: apply to record new events, under Apply to register a town or village green. This now comprises 43 lines: indeed, one will find more (82 lines) in the preceding section on Apply to register a statutory disposition (there is more about the mechanics of making an application in the separate guidance on Commons registers: how to apply to make changes). The potential applicant would be well advised (but is not advised) to refer to the somewhat more detailed guidance provided to the commons registration authority — or better still, to refer to the guidance published by the Open Spaces Society, Getting Greens Registered. Section 7.11 of version 1.3 of the guidance to applicants in the pioneer areas (not found online) published in 2013 provided over six pages on registering town or village greens, while version 1.3 of the guidance (available via the National Archives webarchive) to applicants elsewhere in England specifically on registering greens extended to 20 pages. For those who yearned for further detail, section 8.10 of version 1.43 of the guidance to commons registration authorities (available via the National Archives webarchive) published in 2011 filled 26 pages, much of it drafted by a well known barrister specialising in town or village greens cases.

Yet while it remains possible to access some earlier versions of the guidance, it is not kept up-to-date, and the lay reader will have no likelihood of locating it, let alone any means of knowing whether any particular aspect of it remains valid. The majority must therefore rely on what appears on gov.uk. It is not hard to understand why the new guidance lacks much of the content of the old — content requires revision, and revision requires resources. The law on registering town or village greens in particular continues to evolve through challenges in the courts, and what was written several years ago — even by a barrister — may be misleading today. Still, it is a pity that no signposts have been included to direct the lay reader to more fertile sources of guidance.

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… .