Deregistering Common Land

The number of queries we are getting relating to deregistering common land is on the up, so we thought it would be a good time to explain more about how you can try and do this. Often clients are interested in trying to deregister common land because they want to carry out works on it (for which you otherwise need permission), or because they do not think that the land ought to have been registered as common land in the first place.

By way of brief background, all common land is noted in the appropriate Common Registration Authority’s (“CRAs”) Register of Common Land (the “Register”). In respect of most CRAs, up until December 2014 there was no way of correcting an error in the Register which left owners of common land that they thought had been mistakenly registered unable to do anything about it save for making an application under section 16 of the Commons Act 2006 (see below). However in December 2014 more provisions of the Commons Act 2006 came into force meaning there are now several routes available to those who want to try and deregister common land:

  1. Deregistration and exchange - application under section 16 Commons Act 2006: any owner of common land can make an application under s16 of the Commons Act 2006 for the land to be deregistered. The application is made to the Planning Inspectorate (“PINS”) and there is a fee of £4,900. If the area to be deregistered is more than200 square metres in total, you must include a proposal in your application to register an alternative site as common land or a town or village green in exchange for the deregistration of the original land. If the area to be deregistered is less than200 square metres, while you do not have to offer any replacement land to be designated as common in its stead, PINS usually expects land to be offered in exchange nonetheless. The guidance on this makes it clear that land will only be deregistered as common land without any land being offered in exchange in exceptional circumstances and that an application is most unlikely to be granted if no compelling public interest is served by the deregistration.
  2. Mistakes made by the CRA - applications under section 19 Commons Act 2006 : section 19 gives CRAs the ability to correct mistakes in the Register in certain circumstances. For example, if the CRA made a mistake when making or amending an entry in the Register, or to remove a duplicate entry from the register. We have advised on a number of applications under s19(2)(a) and with the initial applications have met resistance from the CRAs to correct mistakes that are anything other than purely administrative because the guidance they are working to is very prescriptive in what can be amended under section 19. However, our view is that it ought to be broader than simply being used to correct administrative mistakes so watch this space! There is no fee to pay in respect of applications under s19.
  3. Deregistration of land wrongly registered as common land or as a town or village green - application under paragraph 7 of Schedule 2 of the Commons Act 2006: you can apply under this paragraph to deregister land wrongly registered as common land if the following circumstances apply:
  1. the land was provisionally registered as common land between 2 January 1967 and 31 July 1970;
  2. the provisional registration of the land was not referred to a Commons Commissioner;
  3. the provisional registration became final; and
  4. immediately before its provisional registration the land was not any of the following:
    1. land subject to rights of common;
    2. waste land of a manor;
    3. a town or village green because it was physically unusable for recreation during the 20 previous years and the land was not, and is still not, allotted by an Act for recreation; or
    4. land of a description specified in section 11 of the Inclosure Act 1845, which includes gated and stinted pastures, land held in severalty by joint tenants and equivalent lands.
  5. Deregistration of buildings wrongly registered as common land - application under paragraphs 6 of Schedule 2 of the Commons Act 2006: this provision gives owners of common land the ability to apply to have common land deregistered if it was covered by a building or was within the curtilage of a building at the date the land was registered as common land and if the building/curtilage of a building is still covering the land. Note that it does not have to be the same building/curtilage that has covered the land for the duration of the period. We have successfully made an application using this provision. The process took well over a year as it was the CRA’s first application of this type and they wanted to ensure that the precedent they set could not be challenged, but we were successful.

Details of the procedures involved in these applications can be accessed here:

https://www.gov.uk/government/publications/common-land-and-greens-non-registration-or-mistaken-registration-under-the-commons-registration-act-1965-ca13

Please do contact the writer if you are interested in making such an application yourself.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.