Commons: Commons Act 2006 Part 1 (Registration) Implementation in England’s pioneer areas and Wales

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1. Introduction

1.1  Schedule 2 to Part 1 of the Commons Act 2006 (‘the 2006 Act’) provides the mechanism for correcting mistakes made under the Commons Registration Act 1965 (‘the 1965 Act) but some of its provisions have not been implemented everywhere. This information sheet explains what can be corrected and where the provisions are implemented in England and Wales. A decision on how and when to go ahead with national commencement has been put off indefinitely. The appendix at the end of this information sheet provides a list of useful websites.

1.2  Section 19 of Part 1 of the 2006 Act provides a mechanism for correcting the registers of common land or town or village greens. This information sheet explains what can be corrected and where the provisions are implemented in England and Wales.

1.3  In England, commons registration authorities are classified as a ‘pioneer authority’, a ‘2014 authority’ or a ‘1965 authority’. The areas covered by each classification are as follows:

Pioneer authority: Blackburn with Darwen, Cornwall, Devon, Herefordshire, Hertfordshire, Kent and Lancashire (but not any unitary authorities in Devon and Kent)

2014 authority: Cumbria and North Yorkshire (but not the City of York)

1965 authority: elsewhere in England

1.4  In Wales, the position is uniform among all 22 county or county borough authorities which are commons registration authorities.

1.5  Once land has been registered as common land, it will be mapped as such in the next
review of the access maps under the Countryside and Rights of Way Act 2000, and the
public usually will gain the right to walk over the whole area. If the land is in a former borough or urban district, we believe that it will immediately become subject to a right of access on foot and horseback, under section 193 of the Law of Property Act 1925.

1.6  Furthermore, common land must not be developed or encroached upon without the consent of the Secretary of State for Environment, Food and Rural Affairs (in England), or the Minister (in Wales), under section 38 of the 2006 Act, or without exchange land being provided under section 16 of the 2006 Act.

1.7  The land is therefore protected, and the public wins the right to walk, and in some cases to ride, there.

2. Schedule 2 non-registration or mistaken registration in England

2.1  Implementation of Schedule 2 in England is confined to specific areas. At the end of December 2020, implementation of Schedule 2 in the pioneer authority areas came to an end. This means applications under Schedule 2 can no longer be made in these areas.

2.2  In England Schedule 2 is implemented in the two 2014 authority areas (Cumbria and North Yorkshire). Applications to the commons registration authorities to correct mistakes in these areas under Schedule 2 must be made on or before 15 March 2027.

2.3  Elsewhere in England, applications can be made only under paragraphs 6, 7, 8 or 9 of Schedule 2. Applications under these provisions must be made by 15 March 2027.

2.4  Applications must be made as set out in the Commons Registration (England) Regulations 2014

2.5  Application forms are here

3. Schedule 2: Summary of paragraphs

3.1  Paragraphs 2 to 9 of Schedule 2 set out the circumstances under which non or mistaken registration can be rectified:

3.2  Paragraphs 2 and 3: apply to land that was designated as common land or village green by or under an Act of Parliament but was not registered under the 1965 Act.

3.3  Paragraph 4; applies to land that was provisionally registered as common land under the 1965 Act but the registration was cancelled in certain circumstances (see below for details)

3.4  Paragraph 5: applies to land that was finally registered as common land but ought to have been registered as a town or village green

3.5  Paragraph 6: applies to the deregistration of common land that has been covered by a building or its curtilage since provisional registration

3.6  Paragraph 7: applies to the deregistration of other land that was wrongly registered as common land

3.7  Paragraph 8: applies to the deregistration of a town or village green that has been covered by a building since provisional registration

3.8  Paragraph 9: applies to the deregistration of land wrongly registered as a town or village green

4. Schedule 2 paragraphs 2, 3 and 5: Making an application in Cumbria and North Yorkshire

4.1  Anyone can apply. The deadline for applications is 15 March 2027. The application must include:

• Evidence of how the criteria (in paras 2, 3 or 5) are satisfied.
• Where it applies: a copy of the order i.e., a provisional order made under the Commons Act 1876; a copy of the scheme if the land is subject to a scheme made under the Metropolitan Commons Act 1866 to 1898 or Part I of the Commons Act 1899.
• A copy of the Act must be provided if the land is regulated as common land under a local act.
• A copy of the enactment if the land is recognised or designated as common land by or under any other enactment.
• Statement of whether applying under para 2 or 3, and the application seeks to register land covered by a building, or curtilage of a building, the consent of the owner.
• A map at a scale of at least 1:2,500 (save in moorland areas) showing the application land.

There is no fee for making an application but it must be made on the relevant form.

5. Schedule 2 paragraph 4: Making an application in Cumbria and North Yorkshire

5.1  An application can be made only if the land is ‘waste land of a manor’ at the date of application. The deadline for applications is 15 March 2027. In legal terms, waste land of a manor is, ‘the open, uncultivated and unoccupied lands parcel of a manor’. This means that the land must be undeveloped and unimproved. It must also be of manorial origin, although it need not be held in the same hands as the manorial rights at the present date. There is no fee for making an application but it must be made on the relevant form.

5.2  The criteria for re-registration are:

The land was provisionally registered as common land under section 4 of the 1965 Act, i.e., between 1967 and 1970 and

there was an objection to its provisional registration, and one of the following applies:

• para 4(3): the registration was cancelled by the Commons Commissioner solely because the land had ceased to be connected with the manor
• para 4(4): the registration was cancelled by the Commons Commissioner because the land was not subject to rights of common, and the Commissioner did not consider whether the land qualified for registration instead as waste land of the manor, or
• para 4(5): the registration was cancelled at the request of or with the agreement of the applicant before or after referral to a Commons Commissioner

5.3  Background

The following notes explain how these circumstances came about.

5.3.1  Para 4(3) Cancelled by the Commons Commissioner because the land had ceased to be connected with the manor

5.3.2  The definition of common land in the 1965 Act, which guided people in deciding whether to apply for registration of land, was ‘land subject to common rights…or waste land of the manor not subject to rights of common’. Common rights include the right typically to graze animals, collect wood or dig peat, and are normally connected with a property. Applications for registration (called provisional registrations) had to be made during the three-year period between 2 January 1967 and 2 January 1970. There was a period for objections. Any disputed registrations were heard by a Commons Commissioner whose decision was final but could be challenged in the courts.

5.3.4  In 1978, the Court of Appeal decided, in the Box Hill case that ‘waste land of a manor’ must still be in the ownership of the lord of the manor at the time the validity of the provisional registration was decided. This caused the Commons Commissioners to cancel many applications for registration of wastes which were not subject to rights and which were no longer owned by the lord of the manor, or the applicants to withdraw their applications in anticipation of cancellation. However, in 1990, Box Hill was overturned by the House of Lords’ decision in relation to Hazeley Heath[1]. This held that land could be waste land of the manor provided it had at one time been part of a manor. This decision came too late for those applications which had been cancelled or withdrawn on the basis of Box Hill because the closing date for new registrations had passed, and it was too late to challenge the outcome in individual cases. The 2006 Act affords another chance for some wastes to be added back onto the register, where it can be shown that the land is manorial in origin — even if it has long-since ceased to be owned by the lord of the manor.

5.3.5  Para 4(4) Cancelled by the commons commissioner because the land was not subject to rights of common and the commissioner did not consider whether the land qualified instead for registration as waste land of the manor

5.3.6  Where none of the parties appearing before the Commons Commissioner argued that land, not subject to rights of common, might qualify as waste land, the commissioner often concluded that the registration should be cancelled without further consideration. However, there is authority to support the view that the commissioner ought to have examined the evidence of waste before coming to a decision in such cases.

5.3.7  Para 4(5) Cancelled at the request, or with the agreement, of the applicant for registration

5.3.8  Some applications for provisional registration were withdrawn after an objection, perhaps
because of the Box Hill case, or for some other reason, in advance of a hearing before the
Commons Commissioner[2]. Such agreements led to the Commissioner cancelling the
registration by consent, without the opportunity for the wider public interest to be
considered. However, any disputed application that was withdrawn, whether it was
referred to a Commissioner or not, may qualify for registration. This includes applications
that were part-withdrawn (‘modified’) or only part-confirmed by the Commissioner, in relation to the part which was not finally registered.

5.3.9  The decision letters issued after the hearing held by the Commons Commissioner usually will show whether the registration was (a) cancelled by the Commissioner because of the Box Hill case; (b) dismissed, in the absence of common rights, without the Commissioner considering whether the land was waste of a manor; or (c) referred to a Commissioner, but withdrawn before it could be considered at a hearing. Note, however, that where the application was withdrawn before referral to a commissioner, there will not be a decision letter — but the land still may be eligible for an application under paragraph 4.

5.3.10  Evidence of manorial status may be found in archives. The Manorial Documents Register (MDR) provides a detailed catalogue of surviving manorial documents and their location. Manorial records and other historical sources need to be searched to confirm manorial status. The register is maintained by the National Archives at Kew and, for most areas of the country, is available online here

 

5.3.11  The land must be open and uncultivated, so it will need to be inspected. It must also be confirmed that the land is ‘unoccupied’, i.e., it is not used profitably to the exclusion of others. Provided it is manorial in origin, and open, uncultivated and unoccupied, it is eligible for registration.

 

5.4  Commons Commissioners’ decision letters
Most of these can be found on the website of the Association of Commons Registration
Authorities here . A small number of decisions have not been captured: the commons registration authority may be able to assist in particular cases.

Steve Byrne has produced a comprehensive list of eligible areas for each of the commons registers in England. Details of his work are here.

[1]Hampshire County Council v Milburn and others [1991] AC 325
[2]Box Parish Council v Lacey [1979] 1 All ER 113

6. Schedule 2 paragraphs 6-9: Making an application in Cumbria and North Yorkshire (2014 Registration area) and elsewhere in England (1965 authority) but not in a Pioneer authority area

6.1  Anyone can apply (it is not necessary that the applicant is the owner or tenant of the land). The application must include:

• Evidence of how the criteria (in para 6, 7, 8 or 9) are satisfied.
• A fee: determined by the registration authority.
• A map at a scale of at least 1:2,500 (save in moorland areas) showing the application land.

6.2  Following an application:

• The application will be advertised by the registration authority.
• The applicant may be asked to supply further information.
• Representations will be copied to the applicant for comment.
• The application may be referred to the Planning Inspectorate.
• A hearing or public inquiry may be held. If there is a public inquiry into an application under Schedule 2, and the inspector decides a party has behaved unreasonably, a costs order can be made against that party.
• A written decision will be issued.
• If the application is granted, the register will be amended.

7. General information relating to applications

7.1  If you are applying to register or deregister land under any provision in Schedule 2 you will be required to show, in your application, details of the provisional registration of the land under the 1965 Act. You can find out whether the land was provisionally registered, whether the provisional registration was confirmed or cancelled, the land contained in any provisional registration, and any relevant dates, by referring to the commons registers and records held by the registration authority.

7.2  To make an enquiry, you will need to supply the following:

• your name, address, email address and telephone number,
• the register unit number (or the name or location of the common or village
green),
• the name of the parish or district,
• the rights entry number (if you require details about particular rights).

7.3  Fees
There is no charge for your own inspection of the registers or other records. You can usually make copies using a camera, public photocopying machine or tracing paper, or by transcription, and no fee is payable. If you ask the registration authority to give you copies of the register it may charge a fee. It is better to make an appointment if you wish to inspect the records yourself.

7.4  Maps
You usually will need to supply a map to support your application. The map must be an Ordnance Survey map, with a scale of at least 1:2,500 to show any land you want to add or remove from the register, unless the land is wholly or predominately moorland in which case you may use a map with a scale of at least 1:10,560.

However, if you are applying to register land under paragraphs 2 to 5 of Schedule 2 to the 2006 Act, and the area included in your application is the entirety of a cancelled register unit, you may — instead of a map — refer to the register unit number of the cancelled unit.

8. Schedule 2 non-registration or mistaken registration in Wales

8.1  Applications must be made on or before 4 May 2032 on the relevant form as set out in the Commons Act 2006 (Corrections, Non-Registration or Mistaken Registration) (Wales) Regulations 2017 here. Guidance notes, how to make an application and instructions on where to obtain forms for applications are available from the Welsh Government here.
The ‘General information relating to applications in England’ applies in Wales.

9. Section 19: Correction of the registers: England

9.1  Section 19 is implemented throughout England but only for limited purposes and there is no time-limit for applications. It allows for applications to be made for the rectification of the registers to correct a mistake made by the commons registration authority when making or amending an entry in the register of common land or register of greens. In the pioneer authority areas, application may also be made under section 19 to correct the registers in other circumstances.

9.2  Applications must be made as set out in the Commons Registration (England) Regulations 2014.

9.3  Application forms are here.

9.4  Applications may be made in the following circumstances only in the areas of pioneer authorities and 2014 authorities:

• correcting mistakes not affecting the extent of the land or quantification of rights, i.e., any other mistake (section 19(2)(b))
• removing a duplicate entry (section 19(2)(c))
• updating the name and address in an entry (section 19(2)(d))
• updating to take account of accretion or diluvion (section 19(2)(e)).

More information can be found here.

9.5  It may in certain circumstances be possible to amend the registers of 1965 authorities, by an application made under the 1965 Act, but this is outside the scope of this information sheet: please ask the commons registration authority for advice.

10. Section 19: Making an application in England

10.1  Anyone can apply. The application must be made on the prescribed form and must include:

• A statement of purpose i.e., whether the application is made for the purpose of section 19(2)(a), (b), (c), (d) or (e)).
• Details of the register unit and, where applicable, the register entry to be amended.
• Evidence of the mistake which the application seeks to correct.
• A description of the amendment sought to be made to the registers.,
• Other evidence to support your application.
• Where relevant, a map at a scale of at least 1:2,500 (save in moorland areas) showing the application land.
• Fees, where applicable. Fees are payable for applications for the purposes of section 19(2)(b), (d) and (e). There is no fee for applications for the purposes of section 19(2)(a) or (c) (where there is a wider public interest in making the correction). You should check the fee with the commons registration officer before you send your application. Fees are set by the registration authority and are not refundable, even if you decide to withdraw your application.

11. Section 19 Correction of the registers: Wales

11.1  Section 19 is implemented in Wales and applications may be made for any purposes in section 19.

12. Section 19 Making an application in Wales

12.1  Applications must be made on the relevant form as set out in the Commons Act 2006 (Corrections, Non-Registration or Mistaken Registration) (Wales) Regulations 2017 here.

12.2  Guidance notes, how to make an application and instructions on where to obtain forms for applications are available from the Welsh Government here.

13. Appendix

13.1  Useful websites

Commons Act 2006 http://www.legislation.gov.uk/ukpga/2006/26/contents

Commons Act 2006 explanatory notes
http://www.legislation.gov.uk/ukpga/2006/26/notes/contents

Commons Act 2006 (Correction, Non-Registration or Mistaken Registration) (Wales) Regulations 2017
http://www.legislation.gov.uk/wsi/2017/566/contents/made

Planning and Environment Decisions Wales

Planning and Environment Decisions Wales (PEDW) manages casework relating to the development and use of land in the public interest.

 

13.2  Fact-sheets and guidance notes on the pilot areas in England and Wales

 

Commons Act 2006 in England
https://www.oss.org.uk/what-do-we-fight-for/commons/commons-act-2006/

Commons Act 2006 Wales
https://www.oss.org.uk/can-we-help-you/wales/commons-act-2006-wales/

Our Common Land, the law and history of common land and village greens
by Paul Clayden, sixth edition, 2007
from the Open Spaces Society, £19 to members, £20 to non-members
https://www.oss.org.uk/publications/

[revised edition due out in 2021]

Successful re-registration applications
https://www.oss.org.uk/what-we-do/commons/successful-applications-to-re-register-common-land/

 

 

13.3  Maps

• Digital historical OS maps are available from Landmark Information Group
• Certain statutory and other datasets, including the ‘moorland’ map are here.
• Information about ownership can be found here.

 

13.4  Commons Registration Authority Addresses

Most addresses can be found here but we list the addresses of the 2014 authorities and the Pioneer authorities.

 

13.5  2014 authorities

Cumbria
Commons Registration Service
Cumbria County Council
Lady Gillford's House
Petteril Bank Road
Carlisle
CA1 3AJ
Tel: 01228 221026
Email: commons.registration@cumbria.gov.uk
Website: http://www.cumbria.gov.uk/planning-environment/conservation/commons-registration-service/default.asp

 

North Yorkshire
Common Registration
Highways North Yorkshire
County Hall
Northallerton
North Yorkshire
DL7 8AH
Tel: 0845 8727374
Email: commons.registration@northyorks.gov.uk
Website: http://www.northyorks.gov.uk/article/30063/Common-land-and-village-greens

 

13.6  Pioneer authorities

Blackburn with Darwen
Commons Registration Officer
Commons and Greens
Development Control
Town Hall
Blackburn
BB1 7DY
Tel: 01254 585242
E-mail: commonsandgreens@blackburn.gov.uk
Website: http://www.blackburn.gov.uk/

 

Cornwall
Common land and towns and village greens
Commons and Greens Office
Circuit House
Truro
TR1 1DT
Tel: 01872 224773
Email: commonsandgreens@cornwall.gov.uk
Website: https://www.cornwall.gov.uk/environment/land-and-property/common-land-and-town-and-village-greens/

Devon
Devon County Council
Land Charges
Devon County Council
G15 County Hall
Topsham Road
Exeter
EX2 4QD
Tel: 01392 382937
Email commons@devon.gov.uk
Website: https://www.devon.gov.uk/environment/common-land-and-town-and-village-greens

Herefordshire
Commons Registration Office
Herefordshire Council
PO Box 4
Plough Lane
Hereford
HR4 0XH
Tel: 01432 261991
Email: commonsregistration@herefordshire.gov.uk
Website: https://www.herefordshire.gov.uk/community-1/commons-village-greens

Hertfordshire
Commons Registration Officer
Hertfordshire County Council
County Hall
Pegs Lane
Hertford
SG13 8DE
Tel: 01992 555279
Email: commons&greens@hertscc.gov.uk
Website: https://www.hertfordshire.gov.uk/services/recycling-waste-and-environment/countryside-access/common-land-and-town-and-village-applications/common-land-and-town-and-village-green-applications.aspx

Kent
Commons Registration Officer
Kent County Council
Countryside Access Service
Invicta House
County Hall
Maidstone
ME14 1XX
Tel: 0845 3450210
E-mail: commons.villagegreens@kent.gov.uk
Website: http://www.kent.gov.uk/waste-planning-and-land/village-greens

Lancashire
Commons Registration Authority
County Secretary and Solicitor's Group (Ref: LSG4)
Lancashire County Council
P.O. Box 78
County Hall
Preston
PR1 8XJ
Tel: (01772) 530541
Email: commonsandgreens@lancashire.gov.uk
Website: http://www.lancashire.gov.uk/council/transparency/registers/commons-register.aspx

13.7  Welsh Registration Authorities

There are 22 registration authorities in Wales and contact details are available at
https://www.wlga.wales/welsh-local-authority-links

The Open Spaces Society has staff with exhaustive experience in handling matters related to our charitable purposes. While every endeavour has been made to give our considered opinion, the law in these matters is complex and subject to differing interpretations. Such opinion is offered to help members, but does not constitute formal legal advice.

© Open Spaces Society, 2021

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