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The Secretary of State for Environment, Food and Rural Affairs has refused to grant an application under section 19 of the Commons Act 2006, to deregister a small area of land on Allendale Common, at Spartylea in Northumberland. The land was adjacent to a dwelling at Clayhole, which had been owned by the applicant, Mr Leslie Smith, since 1985. Mr Smith said it had been wrongly registered by the commons registration authority in 1968.
The society objected to the application, as did Allendale estates, the owner of the rest of the common. We said there was no evidence of a mistake made by the authority. The history of the application land was uncertain: there is no doubt that, within the last century or so, some of the land had been built upon, and other parts once fell within the curtilage of Clayhole. Equally, the land was plainly historically part of the common, and enclosed by the moorland wall. But the land is now not enclosed off from the common, and the building on the land has long since been demolished (although the land remains within the ownership of Clayhole). However, the lawfulness or otherwise of the encroachment on the common was not at issue: the applicant was required to prove that a mistake had been made by the authority. The application was referred to the Planning Inspectorate to determine, on behalf of the Secretary of State, because of the objection by the common owner.
The applicant had cited the 1968 application of Allendale Estates to register its land as common, and said that the authority should have excluded the curtilage of Clayhole. However, the map which accompanied the 1968 application was too small scale to distinguish the curtilage, and we said there was no obligation, or even power, for the authority to investigate whether to exclude encroachments along the boundary of a 74-square-kilometre common. Even if it had been aware of the situation at Clayhole, it was in no position to decide whether the encroachment was lawful or not — that was a matter for a Commons Commissioner. In any case, we pointed out that the common was initially registered on the application of a commoner, and the commoner’s application had not even been adduced. There was therefore no evidence to support the section 19 application.
The inspector, Alan Beckett, agreed that the register demonstrated that the common had been registered on the basis of an application made five months before the Allendale estates’ application, and as he had no evidence of the earlier application, he could not determine that the authority had made a mistake. The application was refused.
The area to be deregistered would have been to the right of the track, beyond the moorland wall, up to the tree.