Section 12 Transfer of rights in gross

82.     Section 12 requires the transfer of any right of common held in gross (that is, a change in the ownership of a right which is not attached to any land) to comply with such requirements as to form and content as regulations may provide, and the transfer shall not operate at law until it has been registered.

Section 13 Surrender and extinguishment

83.     At common law, a right of common could cease to exist by being surrendered by its owner (usually by a deed of release) or by being extinguished by operation of law. Section 13 requires the surrender of any right of common to be effected in a prescribed form, and delays the effect of the surrender until the right has been deleted from the commons registers. Subsection (3) provides that any other common law mechanism by which registered rights of common may cease to exist is abolished. These mechanisms are believed to comprise:

• Unity of ownership (or unity of seisin): where the common land and the right come into the same ownership (typically, where the dominant tenement to which a right is attached is acquired by the owner of the common), then the right is extinguished. The effect of subsection (3) is that rights acquired by the owner of the common will be exercisable by that person in the same way as the rights were exercisable by their former owner.

• Abandonment: where the owner of the rights can be shown to have irrevocably turned away from the use of the rights.

• Implied release: where a collective release of rights can be inferred over part of the common, typically where that part is inclosed by encroachment and the commoners acquiesce in the loss.

• Alteration to the common, comprising destruction of the common land (such as where the land is reclaimed by the sea) or exhaustion of the product (such as peat which is subject to rights of turbary).

• Alteration to the dominant tenement, comprising the demolition (without replacement) of a building to which rights (particularly rights of turbary) are attached, or the conversion of land to which rights (such as grazing) are attached to a use incapable of benefiting from the right (such as a reservoir).

84.      These mechanisms are considered to be either redundant or of doubtful relevance where the existence of common land, and rights of common, is recorded in statutory registers. The powers in section 13 will provide a mechanism to extinguish rights of common.

Registration, deregistration and exchange of land

Section 14 Statutory dispositions

85.     Section 14 enables the appropriate national authority to make regulations to provide for amendment of the commons registers consequent on a disposition arising under statute. There are a number of statutes under which common land or greens may be acquired (generally compulsorily) and removed from the commons register, sometimes in exchange for other land being added to the register. Similarly, rights of common may be acquired and extinguished, sometimes becoming exercisable over land given in exchange. Subsection (3) sets outs those instruments which are 'relevant instruments' for the purposes of subsection (1), such as orders by which common land is acquired compulsorily, and (usually) other land is given in exchange, on a compulsory purchase under the Acquisition of Land Act 1981.

86.     It is expected that regulations made under the powers conferred by subsection (1) will place a duty on the persons making or confirming a relevant instrument to notify the appropriate commons registration authority of, or direct it to make, amendments to the commons registers consequent on the disposition made by the relevant instrument. Regulations may also provide, under subsection (2), that on an exchange of land, any land given in exchange is to be registered, and under subsection (5), that the disposition is not to have effect until its effect is registered. For example, where common land is acquired under section 13 of the New Parishes Measure 1943 ²⁴ for building a church or similar purposes, regulations may provide that the land is not to cease to be common land until the land and any rights of common are removed from the commons register in accordance with notice given by the Church Commissioners, notwithstanding the effect of section 15(1) of the Measure.

²⁴ Under section 15 of the Measure, common land may be acquired free of rights of common, subject to the consent of the Secretary of State. The provision applies only to the Church of England.

Section 15 Registration of greens

87.     Section 15 sets out the circumstances in which land may be newly registered as a town or village green. It is derived from, but varies in certain respects from, the definition of a town or village green in section 22(1), (1A) and (1B) of the 1965 Act. (There is no substantive distinction in law between a 'town' and a 'village' green: these terms merely reflect the physical setting of a green.) Subsection (1) provides that in qualifying circumstances, any person may apply to the commons registration authority to register land as a green. Subsections (2), (3) and (4) set out the three alternative qualifying circumstances.

88.     The first case (subsection (2)) is where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years, and continue to do so at the time of the application. 'As of right' has been defined in case law as meaning openly, without force, and without permission ²⁵. The reference to "a locality" does not necessarily connote a defined area for administrative purposes, such as a parish, and the phrase "any neighbourhood within a locality" means in effect 'any neighbourhood within one or more administrative areas', in line with the judgment of the House of Lords in the Trap Grounds case ²⁶.

²⁵ See the judgment of the House of Lords in R v. Oxfordshire County Council and others, ex parte Sunningwell Parish Council [2000] AC 335 per Lord Hoffman at paragraph 27.

²⁶ Oxfordshire County Council v. Oxford City Council and another [2006] UKHL 25.

89.     The second case (subsection (3)) is where a significant number of such inhabitants indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years which ceased after commencement of section 15, and the application is made within two years of this cessation.

90.     The third case (subsection (4)) is where a significant number of such inhabitants indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years which ceased before commencement of section 15, and the application is made within five years of this cessation. Land is not covered by this third case (because of subsection (5)) if three conditions are all met:

• planning permission was granted in respect of the land before 23 June 2006;

• before that date, construction works were commenced in accordance with the permission on that land, or on any other land covered by the permission; and

• the land either has become, or will become, permanently unusable by the public for lawful sports and pastimes as a result of works carried out in accordance with that planning permission.

91.     Subsections (6) and (7) amplify how subsections (2) to (4) are to work. Subsection (6) provides that any period during which access to the land was prohibited by reason of any enactment is to be disregarded in the calculation of the 20 year period. Subsection (7) makes provision about when use is to be regarded as continuing for the purpose of subsection (2)(b).

92.     Subsection (8) enables the owner of any land to apply voluntarily for its registration as a green, without having to show that there has first been 20 years' qualifying use of it by local inhabitants. Subsection (9) requires the consent to such an application of any 'relevant leaseholder', and of the proprietor of any 'relevant charge' over the land, thereby protecting these parties' interests in the land. Both of these terms are defined in subsection (10).

Section 16 Deregistration and exchange: applications

93.     Section 147 of the Inclosure Act 1845 provides for the 'exchange' of land. In recent years, the only use which has been made of this power has been to exchange common land or a town or village green for other land, so that the land given in exchange is substituted for the former common land or green. The Secretary of State (in Wales, the National Assembly) is required to confirm orders of exchange. In deciding whether to confirm the order, the Secretary of State must take account of the interests of the parties to the exchange. Sections 16 and 17 provide a replacement mechanism for the exchange of land which is registered under Part 1. Section 147 of the Inclosure Act 1845, and certain ancillary provisions in the Inclosure Acts 1847 and 1857, are repealed by Part 3 of Schedule 6.

94.     Subsection (1) enables the owner of land registered as common land or a town or village green to apply to the appropriate national authority for the land or part of the land to be released from registration. If the 'release land' is more than 200 square metres in area, an application must be made at the same time to register 'replacement land' as common land or a green in its stead (subsections (2) and (3)). If the release land is smaller than 200 square metres, a proposal for replacement land may (but need not) be included (subsection (4)) — but the appropriate national authority must pay particular regard to the extent to which the omission of any proposal for replacement land is prejudicial to the interests specified in subsection (6)(a)-(c) (subsection (7)). Any replacement land may not be land already registered as common land or a green, and must be land to which Part 1 applies (see paragraph 49). Its owner must join in the application, if not also the owner of the release land (subsection (5)).

95.     Subsections (6) to (8) set out the matters that the appropriate national authority must consider in deciding whether or not to consent to an application.

96.     Subsection (9) ensures that an application under this section may be made only with the consent of any relevant leaseholder of, and the proprietor of any relevant charge over, the release land and any replacement land.

Section 17 Deregistration and exchange: orders

97.     Subsection (1) requires the appropriate national authority, if it grants an application under section 16, to make a 'release order' to direct the commons registration authority to remove the release land from the register. Subsection (2) requires, where appropriate, the registration of the replacement land and of any rights of common previously registered as exercisable over the release land, which are now exercisable over the replacement land.

98.     Subsection (3) provides for a power to require a commons registration authority to take such other steps on receiving a release order as may be prescribed in regulations.

99.     Subsections (4) and (5) provide for the extinguishment over the release land of rights of common and any rights exercisable by virtue of the land being a town or village green on its removal from the register. Such rights will generally transfer to the replacement land. Unlike an order under section 147 of the 1845 Act, an order under section 17 has no effect on the title (i.e. the ownership) of the release land or of any replacement land, nor on any easement or proprietary rights in the land (other than rights of common).

100.     Subsection (6) provides that if any relevant provision applied to release land before the relevant date (defined in subsection (9) as the date on which the register is amended), it ceases to apply to the release land and applies instead to the replacement land. Subsection (8) lists the various enactments and measures which are relevant provisions for the purposes of subsection (6). For example, where the release land is subject to a right of access under section 193 of the Law of Property Act 1925, and limitations (similar to byelaws) have been imposed on the right under that section, both the right and the limitations will cease to apply to the release land, and will normally transfer to the replacement land.

101.     There may however be specific circumstances where it would not make sense for recreational rights that apply over an existing green, or specific statutory provisions that apply on an existing common, automatically to transfer to any replacement land. For this reason, subsection (7) enables an order to make special provision disapplying or varying these rights or provisions in relation to the replacement land.

102.     An order may also vary the effect of any local or personal Act in relation to the release land, the replacement land, or both. For example, where the release land is subject to a local Act regulating the management of the release land and adjoining common land, and the replacement land would not otherwise be subject to that Act, the order may provide that the replacement land is to be deemed to be subject to the Act.

Conclusiveness and Correction of the Registers

Section 18 Conclusiveness

103.     Section 10 of the 1965 Act provides that "the registration .. of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration". Section 18 makes similar provision as to the extent to which information in the registers can be relied on. It is immaterial for the purposes of this section whether an entry in the register was made after commencement of the Act or under the 1965 Act — see subsection (6).

104.     Under subsection (2), where land is registered as subject to a right, it is deemed to have become subject to the right on its registration if it would not otherwise have been so subject. It can therefore be assumed that, in law, the land is subject to the right. Subsection (2) does not in itself guarantee that the land continues to be subject to the right. But, given the preceding provisions of the Act, it is in most cases impossible for the situation to have changed, since the right cannot be extinguished by common law, and cannot be surrendered or varied without the surrender or variation being registered. One possible exception is an extinguishment or variation of the right by virtue of another enactment which may have effect before the necessary amendment is made to the register (for example, by a compulsory purchase order made under the Acquisition of Land Act 1981). But section 14(5) enables regulations to be made which cause the effect of such an enactment to be delayed until the register is amended.

105.     Subsection (3) provides that, where the register shows that a right of common is attached to land, the right is deemed to be attached to that land upon registration. Subsection (3) does not in itself guarantee that the right continues to be attached to that land. But again, given the provisions of the Act, it is in most cases impossible for the situation to have changed, since the effect of subsection (6), and the prohibition on severance contained in section 9, is generally that any right of common registered as attached to land ²⁷ will continue to be attached to land. The exceptions are either that an application is made under paragraphs 1 or 3 of Schedule 1 to sever the right, or that an application is made during the transitional period (see Schedule 3 and the notes to that Schedule) for an amendment to the register to show that the right had been severed after the register entry was made but before the commencement of Schedule 3 ²⁸, and the commons registration authority is satisfied that the register should be amended to give effect to the severance. In either case, the severance of the right will then be registered.

²⁷ The rights section of the commons registers prepared under the 1965 Act is prescribed in Form 3 of Schedule 1 to the Commons Registration (General) Regulations 1966 (SI 1966/1471). Column 5 of the prescribed form provides for entries describing "Particulars of the land (if any) to which the right is attached".

²⁸ Subject to regulations made under paragraph 5 of Schedule 3.

106.     Subsection (4) provides that, where the register shows that a person is the owner of a right of common in gross, that person is to be taken as the owner upon registration, even if he or she would not otherwise be the owner. Section 12 provides that a transfer of a right held in gross cannot be effective in law unless the transfer is registered under that section, thereby ensuring that the register remains an accurate record of ownership of such rights.

107.     Subsection (5) preserves what is believed to be the present position under the 1965 Act, which is that, where a right of common is subject to any customary constraint not mentioned in the register (for example, that the rights may be exercised only at certain times of the year, that stock should be hefted in accordance with local custom, or that the times at which stock may be turned out are to be determined by a manorial or other ancient court ²⁹), those constraints are preserved notwithstanding that they are not mentioned in the commons registers.

²⁹ The jurisdiction of certain ancient courts to transact customary business was preserved by section 23 of the Administration of Justice Act 1977.

Section 19 Correction

108.     Section 19 enables commons registration authorities to correct certain errors in the commons registers. Subsection (4) provides that a correction may be made on the authority's own initiative or on an application by any person. Subsection (2) sets out the purposes for which a correction may be made. These comprise:

• In paragraph (a), a mistake in making or amending an entry in the register (including, by virtue of subsection (3), an ambiguous description of, for example, rights of common), but only where the mistake was made by the authority. Such a mistake may arise, for example, where an error was made by the authority in transposing onto the register map a map supplied by an applicant for provisional registration of common land, or where in amending an entry in the register (for example, on an apportionment under the 1965 Act), the authority erroneously added a zero to (or deleted a zero from) the number of rights registered. An error made in a map supplied by an applicant defining the area of common land, which was faithfully reproduced in the register entry, could not be corrected under this provision (but it may be possible to correct such an error under the provisions in Schedule 2).

• In paragraph (b), any other mistake, whether made by the authority or another person, provided that the amendment would not affect the extent of land registered as common land or as a town or village green, nor the quantification of any right of common. For example, a mistake may have been made by an applicant for registration of a right of common attached to land by which the dominant tenement was wrongly defined. The authority would be able to correct such a mistake.

• In paragraph (c), removing a duplicate entry in the register (whether caused by the error of the authority or another person). Duplicate entries typically arose where application was made for provisional registration of a right of common under the 1965 Act, both by the tenant of a farm entitled to exercise the right, and the landlord of the farm ³⁰, and no objection was made to either registration, so that they both became final.

³⁰ See regulation 7(1) of the Commons Registration (General) Regulations 1966 (SI 1966/1471).

• In paragraph (d), updating any details of name or address, such as those which relate to the registered owner of a right held in gross.

• In paragraph (e), updating an entry in the register to take account of the common law principles of accretion and diluvion. The principles apply to all land where the boundary of ownership follows a body of water — whether river, lake or sea shore. They provide that, if by gradual and imperceptible accretions in the ordinary course of nature, land is added on one side, it falls into the ownership of the person owning the rest of the land on the same side, and the boundary line correspondingly advances, and (in the case of diluvion) vice versa. If one side of the body of water is also subject to rights of common, then the rights of the commoners will adjust along with the rights of the owners.

109.     Corrections may be made to the registers for the purposes set out above, whether the error originates from a registration made under this Act or under the 1965 Act (subsection (3)). In some cases, an error may meet the criteria for correction both under this section and under Schedule 2.

110.     Subsection (5) provides that the commons registration authority may not correct mistakes in the register if it would be unfair to do so. For example, if land had been acquired by a person reliant on an inspection of the register which showed it not to be registered common land, but the commons registration authority had mistakenly excluded that land from the register, it would not be able to correct the mistake if it would, in all the circumstances, be unfair to do so (having regard, for example, to the interests of the person acquiring the land, as well as the interests of others interested in correcting the error).

111.     Subsection (7) provides a limited power, derived from section 14(a) of the 1965 Act, for the High Court to order the register to be amended where an entry, or any information in an entry, has been secured by fraud and it would be just to amend it. The High Court will also be able to judicially review the actions of a commons registration authority, but it is not necessary to include provision in the Act for this purpose.

Information etc

Section 20 Inspection

112.     Section 20 provides for a right of public access to the commons registers, and to records held in connection with applications for registration under Part 1 or under the 1965 Act. Regulations may be made under subsection (2) which provide for exceptions to the right, or which place conditions on the exercise of the right, including, as under subsection (3), the payment of fees.

Section 21 Official copies

113.     Section 21 provides for the admissibility in evidence, and the issue, of official copies. There is no provision in section 21 or elsewhere in Part 1 for official searches of the register (for which purpose regulations were made under the 1965 Act): it is expected that instead, non-statutory provision will be made for searches in an amendment to form CON29 Part II published by the Law Society.

Transitory and transitional provision

Section 22 and Schedule 2 Rectification of mistakes etc under the 1965 Act

114.     Section 22 introduces Schedule 2 to the Act, which makes provision for rectification of mistakes and other matters in the commons registers prepared under the 1965 Act.

115.     An amendment may be made to the register for any purpose in Schedule 2 either on an application, or following a proposal brought forward by the registration authority itself. Regulations may prescribe a cut-off date after which applications and proposals under paragraphs 2 to 9 of Schedule 2 may no longer be made.

116.     Paragraphs 2 and 3 of Schedule 2 enable the registration of land which was specifically recognised by or under an earlier statute as being common land or a town or village green, but which was not registered under the 1965 Act. The criteria for registration as common land under paragraph 2 are set out in sub-paragraph (2), and include the requirement that the land is regulated under the Commons Acts 1876 or 1899, the Metropolitan Commons Act 1866, or a local or personal Act, or is otherwise recognised as common land by or under any other enactment ³¹. The criteria for registration as a green under paragraph 3 include the requirement that the land was on 31 July 1970 land allotted by or under any Act for the exercise or recreation of the inhabitants of any locality.

³¹ For an example, see the reference to land specified as common land in the Second Schedule to the Broxbourne and Hoddesdon Open Spaces and Recreation Grounds Act 1890 (ch. xlvii).

117.     For example, a local Act may have defined the extent of a common in a plan deposited with the House authorities during the passage of the corresponding Bill through Parliament, but part (or all) of the lands defined in the plan were overlooked and not registered under the 1965 Act. The amendments will enable the land to be registered, subject to any criteria specified in regulations (which may, for example, restrict application to the owner of the land, or require that the land remains common land at the date of the application). It may be possible for commons exempted from registration under section 11(3) of the 1965 Act (a list of which appears in annex B) to be registered under paragraph 2, and for allotted recreation grounds not registered under the 1965 Act to be registered under paragraph 3.

118.     Paragraph 4 enables certain land to be registered as common land. An application or proposal may be made only in respect of land which is not registered as common land or a green, and which is waste land of the manor at the date of the application. Waste land of the manor has been defined as "the open, uncultivated and unoccupied lands parcel of the manor" ³². Consequently, land which is otherwise eligible for registration under paragraph 4, but which has been developed, improved and brought in hand, or otherwise fails to fulfil the character of waste land of the manor, cannot be registered.

³² Attorney General v. Hanmer (1858) 2 LJ Ch 837. The effect of the Hazeley Heath case (see footnote 34) is that it is not relevant for these purposes whether the land continues to be held by the lord of the manor — but the land must be of manorial origin.

119.     The criteria for registration of land under paragraph 4 are set out in sub-paragraphs (2) to (5), to the effect that:

• the land was provisionally registered as common land under section 4 of the 1965 Act,

• there was an objection to its provisional registration, and

• one (or more) of the following applies:

(i)     the registration was dismissed by the Commons Commissioner solely because the land had ceased to be connected with the manor (sub-paragraph (3)),

(ii)     the registration was dismissed by the Commons Commissioner because the land was not subject to rights of common, and the Commissioner did not go on to consider whether the land qualified instead for registration as waste land of the manor (sub-paragraph (4)), or

(iii)     the registration was withdrawn at the request or with the agreement of the applicant for registration (sub-paragraph (5)).

120.     The Court of Appeal decided in 1978 in the Box Hill case ³³ that 'waste land of a manor' — the second limb of the definition of common land for the purposes of registration under section 22(1)(b) of the 1965 Act — must still be in the ownership of the lord of the manor, but the court's decision was subsequently overruled in 1990 by the House of Lords in the Hazeley Heath case ³⁴. Between 1978 and 1990, many provisional registrations of common land were cancelled by the Commons Commissioner solely on the grounds of the Box Hill judgment, or were withdrawn by the applicant for registration in anticipation of cancellation, and were out of time or ineligible for appeal following the decision in Hazeley Heath. Sub-paragraphs (3) and (5) enable such cases meeting the criteria specified to be the subject of a fresh application for registration.

³³ Box Parish Council v. Lacey [1979] 1 All ER 113.

³⁴ Hampshire County Council and others v. Milburn [1990] 2 All ER 257.

121.     Cases where an application for provisional registration was withdrawn after an objection will also be eligible for consideration under sub-paragraph (5) whether or not the reason for withdrawal was the decision in the Box Hill case. This is intended to enable fresh consideration to be made in respect of cases where applications for registration of a common were withdrawn by agreement between the several applicants, often in advance of a hearing before the Commons Commissioner. Such agreements generally led to the Commissioner cancelling the registration by consent ³⁵, without the opportunity for the wider public interest to be considered in relation to the application.

³⁵ See the provision for decisions by consent in regulation 31 of the Commons Commissioners Regulations 1971 (SI 1971/1727).

122.     Sub-paragraph (4) enables cases to be reviewed where the Commons Commissioner concluded, on an objection to the registration of land as common land, that the land was not subject to rights of common, but did not consider whether the land might qualify for registration as waste land of the manor. Where none of the parties appearing before the Commissioner argued that the land might also qualify as waste land, the Commissioner often concluded that the registration should fail without further consideration. However, there is some authority to support the view that the Commissioner ought to have examined the evidence before coming to a decision in such cases, since there is a public interest aspect to the registration of common land and whether land should or should not be registered should not be treated solely as a matter of dispute between the parties to the application. ³⁶

³⁶ See the judgement of Lord Denning MR in the Corpus Christi case (footnote 10): "I cannot think it correct for the commons commissioners to treat these cases as if they were pieces of civil litigation, such as a lis inter partes, in which the applicants have to prove their case. .. The hearing by the commissioner should be regarded more as an administrative matter, to get the register right, rather than as a legal contest. The commons commissioner should inquire carefully whether any land is common land, and, if it is, register it in the land section accordingly."

123.     In determining the circumstances of a decision by the Commons Commissioner, reference may be had to copies of the Commissioner's decision letters which are held by Defra (in relation to both England and Wales) in both bound and electronic form.

124.     Where land is registered under paragraph 4, it will not be possible to claim or register any rights of common which were formerly exercisable over that land. Such rights were extinguished for want of registration, under section 1(2)(b) of the 1965 Act (see footnote 9).

125.     Paragraph 5 enables certain land registered as common land to be transferred to the register of town or village greens. Some greens were mistakenly registered under section 4 of the 1965 Act as common land, typically because the land was subject to rights of common, and the applicants believed that such land was required to be, or wished to have it, registered as common land. It appears that the effect of section 1(2)(a) of the 1965 Act was to cause such land to cease to be a green, and it is unlikely that the protection afforded to greens by nineteenth century legislation (notably section 12 of the Inclosure Act 1857 ³⁷ and section 29 of the Commons Act 1876 ³⁸) extends to such land ³⁹. Paragraph 5 therefore affords a fresh opportunity to ensure that such land is entered in the correct register. An application or proposal will need to show that, immediately before its provisional registration under section 4, the land was in fact a town or village green within the meaning of the 1965 Act as originally enacted (for example, evidence may be adduced that the land was allotted as a town or village green under an inclosure award). Any transfer will not affect rights of common registered over the land.

³⁷ Prevents damage and interruption to enjoyment of the green.

³⁸ Prevents encroachment or disturbance other than to improve enjoyment of the green.

³⁹ In the Trap Grounds case (see footnote 26), the House of Lords ruled that land registered as a town or village green under the 1965 Act is subject to the protection afforded by the nineteenth century legislation. By implication, the same protection does not extend to former greens registered as common land.

126.     Paragraphs 6 to 9 make provision for the deregistration of certain land wrongly registered as common land or town or village green. The registration of land under the 1965 Act gave rise to a number of regrettable errors. People, including landowners, who disagreed with a provisional registration under the 1965 Act were able to make formal objections within a certain time, which were heard by the Commons Commissioner. But once a provisional registration became final, no allowance was made for substantive corrections to be made, whatever the circumstances. In order to publicise provisional registrations, local authorities were required to give notice of them in local newspapers, and to make the provisional registers available for inspection. There was no requirement to serve notice on the affected landowners (because identifying the ownership of such land was often impossible and one of the purposes of the legislation was to clarify ownership). However, it is clear that some landowners did not see the notices or had no reason to look out for them, and as a consequence a number of mistaken or misguided provisional registrations became final without their being aware.

127.     The Common Land (Rectification of Registers) Act 1989 made provision for the rectification of certain errors in the registers in relation to dwelling-houses. But the opportunity to make an application under the Act expired on 21 July 1992. Further provision similar to (but not the same as) the 1989 Act is made in paragraphs 6 and 8.

128.     Paragraph 6 deals with the removal of certain buildings from the register of common land. Some common land may have been registered so as to mistakenly include (typically) cottages or gardens on or abutting the common. The error may have gone unnoticed, or that the Commons Commissioner felt unable to correct the error if no timely objection had been made. The paragraph enables the deregistration of common land registered under section 4 of the 1965 Act, which is covered by buildings or within the curtilage of buildings. The land must have been covered by buildings or have been within the curtilage of buildings at the time of the original provisional registration, and continuously up to the date of determination of the application or proposal. It is immaterial for the purposes of paragraph 6 whether the building was lawfully present on the land at the date of registration ⁴⁰.

⁴⁰ So this paragraph will not enable the deregistration of land where, for example, a garden has been extended onto, and encroached upon, a common after the date on which the common was provisionally registered.

129.     Paragraph 7 also enables the deregistration of land which was wrongly registered as common land under section 4 of the 1965 Act, but is not restricted to buildings and curtilage (as under paragraph 6). Land will be eligible for deregistration under this paragraph if it was provisionally registered as common land under section 4 of the 1965 Act, and its provisional registration was not referred to a Commons Commissioner.

130.     It follows that an application or proposal cannot be made where a hearing was originally held into the registration of the land by the Commons Commissioner. However, an application or proposal under paragraph 7 will not be precluded merely because a hearing was held which considered only the registration of rights over the land, or because a hearing into the ownership of the land was held under section 8 of the 1965 Act.

131.     An application or proposal under this paragraph will succeed only if it can be shown that, before its registration, the land was not common land (whether subject to rights of common or waste land of the manor), nor a town or village green within the meaning of the 1965 Act as originally enacted, nor within the definition of land subject to be inclosed under section 11 of the Inclosure Act 1845 (see annex C). The exclusion for the purposes of paragraph 7 of land subject to inclosure under the 1845 Act ensures that land cannot be removed from the registers under this provision if, at the time of its registration, it was (among other things) a regulated pasture. Regulated pastures are lands which are owned in common by several persons, who also use the land in common at certain or all times of the year (for example, the land may be used to graze in common the stock of all the owners). A number of regulated pastures were incorrectly registered under the 1965 Act, but the continuing registration of such land is not thought to give rise to any difficulties, and confers some benefits in terms of security of status, and public rights of access.

132.     Provision similar to paragraph 6 is found in paragraph 8 for the deregistration of town or village green registered under section 4 of the 1965 Act, which is covered by buildings or within the curtilage of buildings. The land must have been covered by buildings or have been within the curtilage of buildings at the time of the original provisional registration, and continuously up to the date of determination of the application or proposal. It is immaterial for the purposes of paragraph 8 whether the building was lawfully present on the land at the date of registration.

133.     Provision similar to paragraph 7 is found in paragraph 9 for the deregistration of certain registered town or village greens. However, the criteria for deregistration of greens are slightly different. Sub-paragraph (2) provides that an application or proposal will succeed only if it can be shown that, before its original provisional registration, the land was not common land nor a town or village green. Sub-paragraph (3) provides that the latter condition is satisfied if:

• owing to its physical nature, the land could not have been used by members of the public for lawful sports and pastimes throughout the 20 years before its registration under the 1965 Act (for example, if buildings on the land precluded such use), and

• the land was not (and still is not) allotted under any enactment as a green, or for the purposes of a green.

     This provision seeks to avoid an application under paragraph 9 seeking to adduce witness testimony as to the actual use made of the green prior to the date of provisional registration, which may be unhelpful so long after the period of use.

134.     Paragraph 10 enables regulations to be made to provide for the award of costs arising in determining an application under Schedule 2. Section 24 enables regulations to make provision about applications under paragraphs 2 to 9.