Historic Events

Historic events are those that occurred before Part 1 commenced. Schedule 3 of the Commons Act 2006 is the primary legislation. Amendments to the register must be made during the transitional period, the dates of which vary from county to county as the 2006 Act is rolled out.

Once the transitional period for these changes has closed applications will not be accepted except in exceptional situations. Applications can only be made by the owner of the common or the owner of the rights. Detailed guidance for applicants is given on DEFRA’s website, as is the guidance for the registration authorities, and is useful to show the basis on which an application will be determined. All applications for the amendment of the registers during the transitional period are made on form CA14, available here.

Creation

Applications to register common rights created between 2 January 1970 and the commencement of Part 1 through grant or prescription can be made. It is a grey area as to whether the registration of new rights on existing common land will be accepted. Where the rights are created on non-registered common land the land will be registered as common land as well.

Variation

Applications to vary an existing right of common can be made, e.g.to vary the type of stock or extent of land over which they can be grazed, but will only be accepted in limited circumstances. This is not an invitation to reopen the registers.

Apportionment

Where common rights were apportioned through the disposal of the dominant tenement (the land to which they are attached) to more than one party then the rights are apportioned pro- rata across the land unless severed prior to 28th June 2005.

Transfer of rights in gross

The commons register is proof of ownership for commons rights held in gross. Any changes in ownership must be notified to the registration authority during the transitional period to validate ownership.

Severance

After the quantification of rights as a result of the 1965 Act and prior to the 28th June 2005 the severance of common rights from the land to which they were attached was legal. The register should therefore be updated to reflect any such transactions otherwise the default position that the rights are attached to the land and must be apportioned pro-rata will apply. Clear proof that the transaction took place prior to the 28 June 2005 and that severance was explicitly intended is required.

Surrender and extinguishment

Prior to the commencement of Part 1, common rights could be surrendered by express deed or extinguished when bought by the owner of the common land (you cannot have a common right on your own land). If this event took place but was not recorded in the register the commons register must be updated. If not the common right will be revived at the end of the transitional period once the register is deemed conclusive.

Statutory disposition

Compulsory purchase schemes can acquire common land which is then deregistered in exchange for the provision of additional common land. These two applications are usually handled together. Statutory dispositions can involve common land and common rights.