CLA Regional Surveyor Charlotte Sealy & Philip Wolfgang, Head of Agriculture at South West law firm, Foot Anstey report on the first opportunity in 40 years for landowners to correct mistakes under the current review of the registers of common land and town and village greens.

The Commons Registration Act 1965 is gradually being replaced by the Commons Act 2006 and out of the 148 Commons Registration Authorities in England, seven have been chosen to pilot a project to update the commons registers provided by the new Act. Devon County Council and Cornwall Council are included - and are the only two authorities in the South West which are taking part in the pilot scheme.

Both councils keep the statutory registers of common land and town and village greens, providing details of ownership and the rights of common exercisable over them.

Until now there has been no requirement to keep the registers up to date or for land owners and commoners to inform the Authority of events affecting the registers.

For many landowners, this will provide the first opportunity in 40 years to deal with mistaken registrations that can blight property values.

During the pilot scheme, which runs until 30 September 2010, applications to record historical events affecting the Devon and Cornwall registers can be made without payment of a fee - but once the pilot scheme has ended a fee will be payable.

The aim of the 2006 Act is to bring the registers up to date and owners and graziers are invited to apply to make any necessary amendments. Amendments to the registers will include:

The creation of new rights or the variation of existing rights

To avoid rights being extinguished, the Authority should be notified of any which have been acquired since 1970 and which have not already been registered. It is also important to ensure that the Authority is advised if any registered rights have, in fact, been extinguished to avoid them being revived. If any commons rights have been transferred or sold then the current owner should ensure that the details on the register are up to date.

Deregistering

The opportunity to remove land that has been incorrectly recorded as common land will only be available in very limited circumstances and generally only where some mistake was made at the time of registration. For example you can apply to deregister common land or village greens where the land was built upon at the time of its original registration, and remains built upon at the time the application is decided (applications to be received by December 2020). There may also be opportunities to substitute registered common land with alternative land to facilitate development.

However, there is no scope for the deregistration of land as common land in the situation where all common rights have been extinguished or surrendered. The land will remain registered as common land and therefore continue to be access land under the CRoW Act .

Updating rights

Rights, such as grazing rights, which have been surrendered, varied or severed from the land, should be updated.

New village greens

It is possible to apply to the Authority to register land as a Town or Village Green if: ‘a significant number of the inhabitants of any locality’…have indulged as of right in lawful sports and pastimes on the land for the period of at least 20 years.

19th Century law makes it an offence to interrupt recreational use of town and village greens by building on them. While some applications for this status may be bona fide there are other cases where such use is not clear cut and the motivation is to thwart the planning process and prevent new development taking place. This anti-development tactic is not necessarily in the long term interests of the village as it restricts the sort of development that rural communities often need desperately such as affordable housing.

The qualifying use must normally either be continuing at the date of the application or have ceased no more than 2 years previously.

The applicant will have to establish that local inhabitants have used the land for sports and pastimes ‘as of a right’. The local residents’ use of the land must have been without force, without secrecy and without permission.

To discuss protecting your land against such applications, please contact the CLA.

To ensure that the registers are as up to date and complete as possible by the end of September 2010, we would encourage anyone entitled to apply for amendments to do so as soon as possible.

Applications to amend the registers must be made on the appropriate form, available from the Commons Registration Authority Website.

Regulations made under the Act oblige the Commons Registration Authority to serve notice of all applications and proposals on anyone who asks to be informed. If you wish to be notified, please contact your local council, providing a valid e-mail address and stating that it is to be used for the purposes of receiving notice of all applications and proposals made under Part 1 of the Commons Act 2006. If you choose to opt in, you will receive notice of all applications and proposals made in your county.

Implementation is expected to be rolled out to the rest of England in stages from October 2010.

Further information is available at: www.defra.gov.uk/wildlife-countryside/protected-areas/common-land/ DEFRA - 020 7238 6272