Guidance

Commons registration authorities: record historic events

How to register historic rights of common and make changes to existing rights during the transitional period.

• From: Department for Environment, Food & Rural Affairs
• Published: 17 November 2015
• Last updated: 18 November 2015 — See all updates

Applies to England

The content on this page is in beta and may be updated frequently. This guide is part of a collection which will replace guidance for commons registration authorities and the Planning Inspectorate.

Historic events happened between:

• 3 January 1970 and 30 September 2008 (inclusive) in pioneer authorities
• 3 January 1970 and 15 December 2014 (inclusive) in 2014 authorities

They should have been registered at the time but weren’t.

The transitional period for 2014 authorities

The aim of the transitional period is to correct the registers of commons and greens with historic events, free of charge and for a limited time. The transitional period for 2014 authorities is 15 December 2014 to 14 December 2018.

The transition period has already closed for pioneer authorities.

None of this guidance applies to 1965 authorities - the transitional period doesn’t apply to them, so they can’t record historic events.

Review your registers

You must review your registers of commons and greens to find any unrecorded events that should be recorded (eg a compulsory purchase of common land) or mistakes that should be corrected.

You may find evidence of unregistered events and mistakes in your archives and old correspondence. You should also check these sources:

• local parish councils, for information about boundaries, wrongly registered land and non-registered land
• archives of other local authorities in your area (eg borough and parish councils)
• the National Archives
• local highways departments
• Highways England for information about road exchange schemes
• the Commons Commissioners’ decisions database
• the Defra common land database (MS Excel Spreadsheet, 6.61 MB) - though any cases that predate the provisional registration of land under the 1965 Act will rarely be relevant

You must complete your review of the registers by 14 December 2017. But you should complete it before then to give people time to apply and for you to be able to process applications or make proposals because you must decide all of them by 14 December 2018.

If you find any unrecorded events or mistakes you should write to the person affected by it to encourage them to apply. Alternatively you could make a proposal.

You may find that some mistakes qualify as corrections rather than as historic events when you check the application.

Publicise the transitional period

You should make sure that as many people as possible know that they have an opportunity to correct the registers free of charge for a limited time by:

• publishing a notice on your website
• emailing or writing to all local authorities in the area, including parish councils and the chair of any parish meeting
• emailing all local organisations that represent commoners
• contacting anyone else that you think should know about it

Deciding applications

You must make a decision on all applications and amend the register (if necessary) by the end of 14 December 2018.

Make proposals

You can make proposals up to 14 December 2017. But you should only do so if nobody else is prepared to apply and there is a public interest in amending the register to record an unregistered event or mistake (eg a road exchange scheme that took part of a common).

Late applications and proposals for pioneer and 2014 authorities

You can accept applications to register historic events after the transitional period has closed, but you must subject them to the fairness test. For the fairness test, check if someone has relied on the register as it is, and would be negatively affected if the register was amended. You must balance the interests of the applicant with those of other people who have an interest in the matter.

For example Mr A buys a piece of land after the transitional period ends. Before doing so, he checked the register to establish whether the land was a common or green (it wasn’t). Mr B makes a late historic event application to claim right of common by 20 years use on Mr A’s land (which would turn Mr A’s land into a common). Because the right hadn’t been registered by the time Mr A checked the register the registration authority concludes it would be unfair to Mr A to register the right, so it refuses Mr B’s application.

You can’t accept late applications for the surrender and extinguishment of a right of common.

You can’t make late proposals.

Fees for pioneer and 2014 authorities

2014 authorities can’t charge fees for applications up to and including 14 December 2017. They can charge fees for applications between 15 December 2017 and 14 December 2018, and for later applications.

Pioneer authorities can charge for applications if the fees are published on their website.

Historic creation of a right of common

You can register rights of common created:

• between 3 January 1970 and 30 September 2008 in pioneer authorities
• between 3 January 1970 and 14 December 2014 in 2014 authorities

The rights can have been created by any lawful means including by grant, by prescription (long use that wasn’t challenged by the landowner) or by lost modern grant.

Applications can only be made by:

• the owners of any part of the land that would become the common
• the owners of any part of the land that the right would be attached to (the dominant tenement)
• the owners of the right if it isn’t attached to land (a right in gross)

If you register a right of common to be used on unregistered land, it creates new common land.

It’s only possible to register rights claimed by prescription on land that isn’t a common or green.

Applicants may apply to register a right of common over registered land, if that right was granted by the landowner:

• after 3 January 1970 and before 1 October 2008 for pioneer authorities
• after 3 January 1970 and before 15 December 2014 for 2014 authorities

For a common, you need to check whether it can sustain the use of the rights in the application as well as the existing rights. You must refuse the application if the common could not sustain those extra rights.

If someone is applying for a right of common over a green, it’s likely that a new right of common would interfere with the local inhabitants’ right to use the green for sports and pastimes, so look into this type of application carefully.

Evidence you need

To register a historic right of common you need:

• application form CA14
• evidence that the applicant owns the common, the dominant tenement or the right in gross
• the details of the right to be registered
• the details of the common over which the right can be used (including a map), or a register unit number if the land is an existing registered common
• the details of the dominant tenement that the right will be attached to (if relevant)
• evidence of how the right was created, including any deed or other legal instrument

Once you’ve made a decision, quote The Commons Registration (England) Regulations 2014, Schedule 4, paragraph 15 in the notice on your website.

Amend the register

Use model entry 3 as a reference if you’re creating a right of common. Use model entry 18 as a reference if you’re registering new land.

Historic variation to a right of common

Variations (changes) to rights of common usually relate to what can be done under the right (eg varying a right to graze from 100 cattle to 600 sheep). Variations can also enable the right to be used over different land or adjust the dominant tenement (although this isn’t an apportionment).

If a variation makes an existing right usable over unregistered land, that land must be registered as common land.

A variation can’t lead to the deregistration of the whole common or green.

You can register variations that happened after the date of the original registration of the right, but before:

• 1 October 2008 in pioneer authorities
• 15 December 2014 in 2014 authorities

Applications can only be made by:

• the owners of any part of the common before the variation
• the owners of any part of the common after the date of the application
• the owners of the dominant tenement
• the owners of the right in gross (if they’re not the registered owners, they must first apply to transfer ownership)

Evidence you need

To register a historic variation of a right of common you need:

• application form CA14
• evidence that the applicant owns any part of the common before the variation or at the date of the application, or the dominant tenement or right in gross
• the register unit number
• the entry number in the rights section of the register
• the details of the variation to be recorded
• the details of the dominant tenement (including a map) - unless the right is held in gross
• evidence of how the right was varied, if relevant

Once you’ve made a decision, quote The Commons Registration (England) Regulations 2014, Schedule 4, paragraph 17 in the notice on your website.

Amend the register

Use model entry 4 as a reference if you’re varying what can be done under the right. Use model entry 17 if the variation requires new land to be registered.

Historic apportionment of a right of common

You can register the apportionment (division) of rights if the dominant tenement (the land that the right would be attached to) was divided before:

• 1 October 2008 in pioneer authorities
• 15 December 2014 in 2014 authorities

Historic apportionments can only be registered when an application, called a ‘primary application’, is made at the same time to amend rights by:

• varying (changing) them
• severing (separating) them from the dominant tenement
• surrendering them (giving them up)
• extinguishing (cancelling) them
• transferring them and the common or green, or extinguishing them, as a result of a statutory disposition listed in the Regulations, Schedule 4, paragraph 8, table, Column 3 - Relevant instrument.

Only the person who makes the primary application can apply to make an apportionment. If the applicant doesn’t make a primary application then the apportionment can’t be registered as a historic event. But it may be possible for the applicant to register the apportionment as a new event, as new event apportionments don’t require a primary application to be made at the same time.

Evidence you need

To register a historic apportionment of a right of common, you need:

• application form CA14
• a primary application (which must be made by the same person who makes the apportionment)
• the register unit number
• the entry number in the rights register
• the details (including map) of the whole of the dominant tenement before apportionment
• the details (including map) of the new dominant tenement after apportionment
• the name and address of the owner of the dominant tenement affected by the primary application

Applicants must also include a calculation of how the rights are apportioned. Generally this should be pro rata (the proportion of the applicant’s share of the overall area of the dominant tenement is used to calculate their share of the rights).

For example, a right of common to graze 100 sheep is attached to a dominant tenement of 40 hectares. The owner sells 5 hectares. The purchaser’s share would be calculated as: total number of rights over the common (100) divided by the total area of the dominant tenement (40) multiplied by the purchaser’s share of the dominant tenement (5). This would give the purchaser a right to graze 12.5 sheep on the common. You must round down fractional rights, in this example to 12 sheep. This cancels any fractional rights.

If the rights haven’t been apportioned pro rata, applicants need to supply evidence to justify why not.

If an apportionment was caused by a statutory disposition made on or after 28 June 2005 then the apportionment must be pro rata unless the statutory disposition itself shows that another outcome was intended. Ignore testimonies from any parties to the statutory disposition after it comes into effect.

Rights can’t be apportioned if they’re attached to a dwelling or the right is unquantified (it can’t be measured by weight, size or number). The following unquantified rights can’t be apportioned because they would be likely to increase the burden on the common:

• estover - the right to take specific products, such as timber, firewood or bracken
• piscary - the right to take fish
• turbary - the right to take turf or peat

If an unquantified right is for the benefit of the whole of the dominant tenement, rather than attached to a building, you may allow apportionment if it would not increase the overall burden on the common. For example, a right to take bracken for cattle bedding may imply a right to take enough bedding for all the cattle that may be kept on the dominant tenement over winter. If the dominant tenement is divided into 2 or more separately owned holdings, you may allow each of those holdings the same right, because it would be limited by the number of cattle that can be kept on that holding over winter.

Once you’ve made a decision, quote The Commons Registration (England) Regulations 2014, Schedule 4, paragraph 18 in the notice on your website.

Amend the register

Use model entry 5 as a reference to amend the register.

Historic severance of a right of common

You can register historic severance (separation) of a right from the dominant tenement (the land that the right would be attached to) that happened before:

• 1 October 2008 in pioneer authorities
• 15 December 2014 in 2014 authorities

You must refuse an application to register a severance that happened on or after 28 June 2005, as severances by instrument (such as a conveyance) aren’t allowed. From that date rights can only be severed if they’re transferred to a public body or are authorised under an Act. Unquantified rights can’t be severed, and neither can rights appendant (ancient rights that can’t be separated from their dominant tenement).

Applications can only be made by:

• the person to whom the right of common was transferred as a result of the severance
• the owner of the right of common on the date of the application
• the owner of the dominant tenement

Evidence you need

To register a historic severance, you need:

• application form CA14
• evidence that the applicant is either the person the right was transferred to on severance, the owner of the right of common or the owner of the dominant tenement the right was previously attached to
• the register unit number
• the entry number in the rights register
• the details of the dominant tenement, including a map
• evidence that clearly shows an intention to sever the right, which includes an instrument (eg conveyance) or other documentary evidence that shows the right has been severed or has been treated as such

Once you’ve made a decision, quote The Commons Registration (England) Regulations 2014, Schedule 4, paragraph 19 in the notice on your website.

Amend the register

Use model entry 14 as a reference to amend the register.

Historic transfer of rights of common held in gross

Rights of common held in gross are deeds held by 1 or more people rather than being attached to land. You can register the transfer of rights of common in gross that was made in writing and happened before:

• 1 October 2008 in pioneer authorities
• 15 December 2014 in 2014 authorities

Applications can only be made by:

• the registered owner of the right
• the owner of the right on the date of application

Evidence you need

To register a historic transfer of rights of common in gross, you need:

• application form CA14
• evidence that the applicant is the registered owner or the current owner of the right
• the register unit number
• the entry number in the rights section
• evidence of the how the right was transferred (eg a deed or a chain of conveyances)

Once you’ve made a decision, quote The Commons Registration (England) Regulations 2014, Schedule 4, paragraph 20 in the notice on your website.

Amend the register

Use model entry 8 as a reference to amend the register.

Historic surrender or extinguishment of rights of common

You can register the surrender (giving up) and extinguishment (cancellation) of a right of common if it occurred before:

• 1 October 2008 in pioneer authorities
• 15 December 2014 in 2014 authorities

Applications can only be made by:

• the current owner of any part of the dominant tenement (the land that the right would be attached to)
• the owner of the right in gross when it was surrendered or extinguished
• the current owner of any part of the common that the rights were used on

Rights extinguished by common law

Rights might have been extinguished for the following reasons:

• the common and the rights used over it are owned by the same person (unity of ownership or seisin)
• the owner is shown to have permanently stopped using the rights (abandonment)
• when part of a common is enclosed, eg by a garden, and commoners don’t object (implied release)
• the common is destroyed (eg by being covered by the sea) or the product (eg peat) has run out
• there is a change in the dominant tenement that means that it can’t benefit from the rights - eg the right is attached to a house that is demolished and isn’t replaced, or the whole dominant tenement is converted into a reservoir

You can’t accept these reasons for severances or extinguishments if they occurred on or after the following dates:

• 1 October 2008 in pioneer authorities
• 15 December 2014 in 2014 authorities

Evidence you need

To register a historic surrender or extinguishment of rights of common, you need:

• application form CA14
• evidence that the applicant is the current owner of any part of the dominant tenement or the common, or the owner of the right in gross when it was extinguished
• the register unit number
• the rights entry number
• the details and a map of the dominant tenement (if relevant)
• evidence that the right was surrendered or extinguished (eg a deed)

Once you’ve made a decision, quote The Commons Registration (England) Regulations 2014, Schedule 4, paragraph 16 in the notice on your website.

Amend the register

Use model entry 9 as a reference to amend the register.

Historic statutory disposition

Statutory dispositions are legal instruments that can acquire commons, greens and rights of common and either transfer the rights to alternative land or extinguish them from the register. There are many different types of statutory disposition - for example, a compulsory purchase order to acquire land for new housing.

Statutory dispositions can:

• extinguish rights of common
• extinguish rights of access for open-air recreation
• extinguish rights to recreate on greens
• give new rights of common or recreation to the persons whose rights were removed
• stop land being classed as common land or greens
• create new common land or a green

Anyone can apply to register a historic statutory disposition if a disposition under 1 of the relevant instruments listed in the Commons Registration (England) Regulations 2014, Schedule 4, paragraph 8, columns 1 and 2 of the table came into effect before:

• 1 October 2008 in pioneer authorities
• 15 December 2014 in 2014 authorities.

You can make a proposal to register a statutory disposition by the end of 14 December 2017.

Evidence you need

To register historic statutory dispositions, you need:

• application form CA14
• evidence of the statutory disposition or exchange, with a copy of any approval, authorisation, certificate or consent if relevant
• evidence that the statutory disposition has come into effect
• register unit numbers (if relevant)
• the rights entry number (if relevant)
• the details of the amendments to be made to the register (if relevant)

Once you’ve made a decision, quote The Commons Registration (England) Regulations 2014, Schedule 4, paragraph 21 in the notice on your website.

Amend the register

You must amend the register using relevant model entries as reference. Use model entries 3, 4, 9, 13 for an exchange of land and model entries 15, 16, 17, 18 or 20 for an exchange of land.

Further information

This guidance relates to Part 1 of the Commons Act 2006 and The Commons Registration (England) Regulations 2014.

The Association of Commons Registration Authorities supports commons registration officers and staff whose work includes common land and town and village greens.

Published 17 November 2015
Last updated 18 November 2015 + show all updates

1. 18 November 2015

   Added link to original guidance document.

2. 17 November 2015

   First published.