Other Provisions: Schedules 2 & 3 and Section 19

 

Under paragraphs 2 and 3 of Schedule 2, it will be possible for statutory commons and greens not captured by the 1965 Act — including the commons that were formally exempted from registration — to be brought onto the registers. Paragraph 2, for example, might draw in some of the commons that were acquired by local authorities during the C19th and C20th as water catchment land. Paragraph 3 is directed specifically at land allotted for recreation under an Inclosure Act that was not registered under the 1965 Act as a town or village green. (A list of the commons exempted from registration under the 1965 Act is available HERE).

 

Under paragraph 5, provision is made for town or village greens that were mis-registered as common land to be transferred within the record. The land affected would then be protected by the appropriate (greens) legislation. One group of applications that may be worth examining with this provision in mind comprises the cases where an area of land was provisionally registered as both a common and a green but was finally registered as common land. A ‘conflicting’ registration of this kind will be noted in the land section of the register.

 

Paragraphs 6–9 of Schedule 2 provide for the deregistration of land that is currently recorded as a common or a green. Separate provision is made, in paragraphs 6 and 8, for land covered by buildings (or their curtilage) that were in existence at the date of registration. Otherwise, if a CL or VG unit is to be deregistered, in whole or in part, it will need to be shown that the land does not come within the legal definition of a common or green. The discussion on the ‘Waste Land’ page of the legal issues surrounding the definition of ‘waste land of a manor’ may be of some relevance here. If it is accepted that land subject to leased or tenants’ rights may qualify as waste land of a manor (the view supported by DEFRA), then the existence of such rights cannot, in itself, provide a basis for deregistration. If, for example, it were claimed that the rights recorded in the register were not common rights but leased or tenants’ rights that had been wrongly registered as common rights, and this proved to be the case, it would still need to be shown that the land was not ‘waste land’ at the time of its registration. Individuals or groups with an active interest in re-registration may also wish to monitor, and oppose, unwarranted applications for deregistration. If so, they should request inclusion in the e-mail list of those to be notified by the registration authority of Part 1 applications and proposals. To be placed on the list, send an e-mail to the Commons Registration Authority asking to be informed of any applications received by the CRA. The message should include a reference to regulation 21(1)(b). In the case of the Pioneer Areas, Cumbria and North Yorkshire you should also ask for notification of any proposals and include a reference to regulation 22(5). Contact details for the English CRAs are available HERE.

 

Section 19 of the 2006 Act provides a new power for the registration authorities to make corrections to the registers. If a mistake can be clearly demonstrated, s19 may in some cases offer an alternative to a Schedule 2 application. Unlike the latter — which has a cut-off date of 31 December 2020 (in the Pioneer Areas) or 14 December 2027 (in Cumbria & N Yorks) — the s19 provisions are not time-limited.

 

Schedule 3 provides for the registration of ‘qualifying events’ during a transitional application period. Amongst the events that may qualify are unregistered statutory dispositions - including, for example, compulsory acquisitions involving the creation of new common land to replace land that was taken. There are thought to be a number of cases where exchanges of this kind have not been recorded in the registers. Schedule 3 offers an opportunity to correct these anomalies.