Guidance

Commons registers: apply to record historic events

Find out how you can apply to change the commons registers to record a historic event.

• From: Department for Environment, Food & Rural Affairs and Natural England
• Published: 12 December 2014

Applies to England

You can apply to update the register with historic events that should have been recorded in the registers of common land or of town or village greens, but weren’t. Historic events are those that happened between:

3 January 1970 and 30 September 2008 (inclusive) in the areas of:

• Blackburn with Darwen Council
• Cornwall Council
• Devon County Council (but not including Plymouth or Torbay)
• County of Herefordshire District Council
• Hertfordshire County Council
• Kent County Council (but not including Medway)
• Lancashire County Council (but not including Blackpool)

3 January 1970 and 14 December 2014 (inclusive) in the areas of:

• Cumbria County Council
• North Yorkshire County Council

It’s not yet possible to apply to record a historic event in any other area.

Apply using form CA14. You can apply on your own or with others. You’ll be applying under Schedule 3. Find more information about applying to change the commons registers to help you with your application.

Apply during the transitional period

The transitional period for Blackburn with Darwen, Cornwall, Devon, Herefordshire, Hertfordshire, Kent and Lancashire has ended.

Cumbria and North Yorkshire will operate a transitional period of 4 years (up to 14 December 2018). During the first 3 years (up to 14 December 2017), applications are free and there is no fairness test. In year 4, you may have to pay a fee, but there is no fairness test. After that the transitional period will close, and there will be both a fairness test and a fee (where relevant). The fairness test is about whether others may have reasonably relied on the unamended registers, so that it would be unfair to them to amend the registers now.

Apply to record the historic creation of a right of common

The right can have been created by any lawful means, including by grant (a deed) or by prescription (if the right has been asserted for a period of 20 years as of right and has not been challenged by the landowner). You should seek legal advice if you are unsure of the basis of any claim through prescription.

The right of common need not be attached to land, but in Defra’s view, a right of common held in gross could only have been created by express grant.

Who can apply

You can apply if you’re:

• the owner of any part of the land over which the right of common is exercisable (in other words, the common land)
• the owner of the land to which the right is attached (such as a farmhouse), thereby allowing the owner to exercise the right
• the owner of the right in gross (attached to a person rather than attached to land)

Interpretation

There is considerable uncertainty whether a right of common can be acquired over land that is already registered as common land or a town or village green. This is because the 1965 Act provided that “no rights of common shall be exercisable over land capable of being registered as common land or as town or village green under the Act unless they are registered…”. In Defra’s view, these words had effect after 31 July 1970, the end of the period referred to in section 1(2) of the 1965 Act, and did not prevent the acquisition of new rights of common by prescription after that date, although regulations made under the 1965 Act prohibited the registration of a new right of common over existing registered land. The 2006 Act therefore leaves the door open to the possibility that rights of common can be acquired by prescription under the 1965 Act even in relation to existing registered land, but does not explicitly provide that they can be. In Defra’s view, a new right may be asserted over registered land provided that it was not in existence on 2 January 1970. A period of prescription beginning after 3 January 1950 may therefore be eligible for registration. but the matter cannot be regarded as settled, and will need to be determined by the registration authority if it arises.

Equally, it may also be possible to assert the validity of a grant of a right of common over existing registered land. In such cases, however, the registration authority will need to consider whether the owner of the common was capable of granting a new right having regard to its impact on the exercise of any existing rights of common. For example, where the number of registered rights exercisable over a common under the 1965 Act exceeds the capacity of the common to sustain those rights, then in Defra’s view, any new grant would have been invalid at common law, and should not be registered on an application for the purposes of paragraph 2(2)(a) of Schedule 3. It is seldom likely that a new right of common could be acquired over a registered town or village green, without interfering with the neighbourhood’s right to use the green for sports and pastimes, and in Defra’s view, any application for that purpose will need to be scrutinised very carefully.

Where an application relates to a new right of common that is exercisable over land that is not currently registered as common land, it will cause that land to become common land when it is recorded in the register.

Apply to record a historic variation of a right of common

You can apply to register a variation of a right of common that occurred during the relevant historic period.

Who can apply

You can apply if you’re:

• the owner of any part of the common land before the variation
• the owner of any part of the common land after the variation
• the owner of the dominant tenement to which the right of common is attached (such as a farmhouse)
• the registered owner of the right in gross

If you’re the current owner of a right in gross that was varied but you’re not the registered owner, you must first apply under to register the transfer of ownership (see advice below on historic transfer of a right in gross).

Interpretation

A variation may relate to any aspect of the registered right, but most typically will comprise a variation in what may be done under the right (for example a variation of a right to graze 100 cattle so as to substitute a right to graze 600 sheep), but may also enable the right to be exercised over new or different land, or adjust the dominant tenement to which the right is attached.

Apply to record a historic apportionment of a right of common

You can apply to register an apportionment of a right of common that occurred during the relevant applicable historic period. Apportionment happens when the dominant tenement is divided into smaller lots. The apportionment can only be registered where it is a pre-requisite to another type of change to the right (‘the primary application’). The primary application will make one of the following changes to the right of common: extinguishment, surrender, variation or severance as a historic event under Schedule 3. Additionally, a primary application may be made as a result of a historic statutory disposition. You must submit your application to apportion rights at the same time as the primary application. You can also register an apportionment as a ‘new event’ (rather than a historic event) even where no primary application is involved. See advice on new events.

An application to register an apportionment, where the apportionment arises from an instrument (for example conveyance) made on or after 28 June 2005, must be pro rata, meaning proportionate to its share of the former dominant tenement before it was divided up.

Where the apportionment arises from an instrument made before 28 June 2005, the effect of paragraph 18(4) of Schedule 4 to the Regulations is that you cannot apportion the rights other than pro rata unless you supply evidence from that time that the parties to the instrument intended some other outcome. Such evidence is most likely to be found in the instrument itself (for example a clause in a conveyance of part of the dominant tenement which says the rights are not sold with the land but are reserved to the part of the dominant tenement retained by the seller). A declaration or other statement by you the applicant, or by the parties to the instrument made after the date of the instrument itself, will not be sufficient to indicate another outcome, and cannot satisfy the requirements of the regulation.

Who can apply

You can only apply if you have made the primary application.

Apply to record a historic transfer of a right held in gross

You can apply to register a transfer of a right of common in gross that happened during the relevant applicable historic period.

The transfer of a right held in gross must be in writing, for example by conveyance. A right of common in gross can’t be transferred by an oral agreement. You will need to provide evidence as to how you acquired the right in gross.

Who can apply

You can apply if you’re:

• the person registered as the owner of the right of common (in other words, you owned the right before it was transferred to the new owner)
• the owner of the right of common at the date of application (in other words, you now own the right in gross)

Apply to record a historic surrender or extinguishment of a right of common

You can apply to register a surrender or extinguishment of a right of common that occurred during the relevant applicable historic period.

Though they have different terms ‘surrender’ or ‘extinguishment’ have the same effect: the cancellation of the right from the register. A surrender will generally arise from a deed for extinguishment of the right agreed between the commoner and the common owner, whereas extinguishment may have arisen in consequence of a common-law event.

Who can apply

You can apply if you’re:

• the current owner of any part of the dominant tenement to which the right was attached
• the owner of the right in gross before it was surrendered or extinguished
• the current owner of any part of the servient tenement over which the right of common is exercisable

Interpretation

The common law mechanisms by which rights of common may be extinguished are:

• unity of ownership (or unity of seisin): where the common land and the right of common 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 section 13(3) of the Commons Act 2006 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; meaning the right of common will no longer be extinguished)
• 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)

The common law mechanisms above were abolished in the pioneer areas on 1 October 2008 and in Cumbria and North Yorkshire on 15 December 2014 (they have not been abolished in any other areas in England) by section 13(3) of the Commons Act 2006. But it does not affect the operation of the common law during the historic period.

There remains some uncertainty as to whether the registration of rights of common under the 1965 Act modified (to any extent) the operation of the common law mechanisms, and these questions have not been considered by the courts: for example, it is unclear whether an application to remove a right of common from the register because it is alleged to have been abandoned, can succeed, because the very act of registration of the right under the 1965 Act might be said to have preserved a right from the intention to abandon it. In Defra’s view, the matter cannot be regarded as settled, and will need to be determined by the registration authority if it arises.

In Defra’s view, an application to amend the register arising from any of these mechanisms cannot cause any land to cease to be registered as common land or green, because no provision is made in paragraph 2(2)(b) of Schedule 3 for the registration of such an outcome. So, for example, where an application is made to amend the register to remove a right of common because the land over which the right is exercisable has been destroyed by the sea, the registration authority may grant the application, but it has no power to amend the register so as to remove the common land from the register (even though the rights formerly exercisable over the land have been extinguished and the land no longer exists).

Apply to record a historic statutory disposition

A ‘statutory disposition’ happens when registered common land or green, or a registered right of common, has been affected by a statutory scheme (such as a compulsory purchase order) which causes either the extinguishment of the common land or town or village green and rights of common over it or the transfer from that land to replacement land of the rights of common, so that it instead becomes the common or town or village green and the rights of common can be exercised over it.

Before you apply you should make sure that the relevant instrument has come into effect insofar as it affects registered land or rights of common. For example, where a compulsory purchase order provides for the vesting of land given in exchange, the vesting takes effect on a specified date which is later than the date on which the compulsory purchase order itself is confirmed. It is only after this later date that application can be made to the registration authority to deregister the taken land, and to register the replacement land. In such a case, you should make sure that the vesting provided for in the order has indeed taken place, as in certain circumstances, the vesting may not occur until many years after the date of confirmation of the order.

If you are applying to deregister land in exchange for replacement land, you should include in your application details of the replacement land given in exchange.

Who can apply

Anyone can apply to record a historic statutory disposition.

Interpretation

The enactments listed would result in a statutory disposition. Some have been repealed and replaced previous enactments to similar effect, but these may also be registered.

• the Lands Clauses Consolidation Act 1845, sections 99 and 107, or the Compulsory Purchase Act 1965, section 21 and Schedule 4, which authorise the taking of common land and green (compulsorily if required) for particular purposes, where one or other statute is incorporated in another ‘special’ Act for that purpose. The acquisition of common land under the 1845 Act is generally subject to the approval of the Secretary of State under section 22 of the Commons Act 1899.
• Inclosure Act 1845, sections 147 and 149, which enable the exchange of land, or of a recreational allotment remote from a village for another more convenient, by order of the Secretary of State.
• Inclosure Act 1846, section 11, which enables the exchange of stinted rights of common between two commons, by order of the Secretary of State.
• Malvern Hills Act 1930, section 8, which confers on the Malvern Hills Conservators a power to sell, lease, exchange or dispose of land regulated as part of the Malvern Hills, subject to the consent of the Secretary of State, and section 9, which confers powers on the Conservators to sell or exchange land regulated as part of the Malvern Hills for the purpose of adjusting, defining or improving their boundaries, subject to the consent of the Secretary of State.
• a conveyance of registered land made for the purpose of sections 13 and 15 of the New Parishes Measure 1943, which enables the Diocesan Board of Finance for the diocese in which the land is situated to acquire land for various purposes connected with the Church of England.
• Greater London Parks and Open Spaces Order 1967, articles 7, 8 and 12, which enable the erection of buildings or permanent inclosure of common land or green; article 15, which confers on London borough councils powers to exchange parts of common land or green for land adjoining; and article 17, which confers on such councils powers to use portions of common land for street improvements.
• the Countryside Act 1968, sections 6 and 9 and Schedule 2, which confer powers exercisable by local authorities over common land open to public access, in the interests of persons resorting to that land for open-air recreation.
• the Acquisition of Land Act 1981, section 19: a compulsory purchase order in respect of any land forming part of a common other than where the Secretary of State issues a certificate under section 19(1)(aa).
• the Acquisition of Land Act 1981, paragraph 6 of Schedule 3: a compulsory purchase order in respect of any common land other than where the Secretary of State is satisfied that paragraph 6(1)(a) or (aa) applies and certifies accordingly. See notes above.
• New Towns Act 1981, paragraph 13 of Schedule 4, which enables the compulsory purchase of registered common land or of a registered town or village green.
• Town and Country Planning Act 1990, section 229 enables the appropriation of land forming part of a common or of a town or village green by a local authority.
• the Acquisition of Land (Authorisation Procedure) Act 1946, paragraph 11 of the First Schedule (which was re-enacted in section 19 of the Acquisition of Land Act 1981), and
• the Town and Country Planning Act 1971, section 121 (which was re-enacted in section 229 of the Town and Country Planning Act 1990).
• Planning Act 2008, section 131 or 132, which enables the compulsory purchase of common land or of a town or village green, or of a right of common, in an order granting development consent.

Apply to record a historic severance of a right of common

You can apply to register the severance of a right of common which occurred between 2 January 1970 and before 28 June 2005. Severance is the act of separating a right of common from the dominant tenement (such as a farmhouse) to which it was attached, so that the right of common could be transferred on its own without the land it was attached to.

Who can apply

You can apply if you’re:

• the person to whom the right of common was transferred on severance
• the owner of the right of common at the date of application
• the owner of the dominant tenement to which the right is registered as being attached

Interpretation

From 28 June 2005 it has no longer been possible to sever rights of common (except in the limited circumstances described in section 9(2) of the Commons Act 2006). This was prohibited under section 9 of the Commons Act 2006, whether the severance is temporary (such as where the rights are let by the commoner to a third party) or permanent (such as where the rights are sold to one person and the dominant tenement is sold to another). Section 9 applies only to rights of common which are attached to land and could have been severed under the law as it stood before 28 June 2005. It does not apply to rights of common which cannot be severed, including ‘unquantified rights’, for example rights to take fuel or collect firewood, and ‘rights appendant’: in such cases, the common law continues to apply, and the rights may not be severed either temporarily or permanently.

If your application is supported by good evidence of severance, such as a conveyance made before 28 June 2005 where the land to which the rights are registered as attached is conveyed to one party and the rights are conveyed in gross to another party, and the severance was lawful, that is likely to be sufficient to support an application to register the severance as a historic event.

Unless the instrument or other contemporary evidence shows an intention that the rights should be severed from the land, the registration authority cannot grant your application. However a right of common may be treated as having been severed, even in the absence of contemporary written evidence, if your application shows that the right was subsequently treated as severed and there is no other explanation for that treatment.

Published 12 December 2014