New Events
Creation
New rights of common can be created after the commencement of Part 1 by express grant i.e. a legal deed, but not by prescription. The form itself will be the express grant. The rights must be attached to land (a dominant tenement) and with common rights for grazing Natural England must be consulted as to whether the creation is sustainable. The final decision rests with the registration authority who may take account of common rights that are not exercised and are unlikely to be so.
Form CA1, available here, is used for the application which can only be made by the owner of the common or the dominant tenement to which the rights will attach.
Variation
Existing rights of common can be varied as in this section in Historic Events. Evidence that the changes are sustainable when taking account of existing rights and other legal interests is required and Natural England are to be consulted.
Apportionment
Since 28 June 2005, when a dominant tenement is split e.g. through sale or inheritance, then the rights attached to it must also be split as explained in the section in Historic Events. It is not a requirement to register the apportionment of the common rights unless the application is in advance of registering surrender, variation or severance of common rights. Unquantified rights e.g. piscary, turbury or estovers cannot be apportioned otherwise the burden on the common would be increased and these usually remain attached to the house. When apportionment results in a fraction of rights that would result in less than one head of stock, e.g. 0.46 sheep, then the number is rounded down and the balance is, in effect, extinguished.
Transfer of rights in gross
Common rights in gross that are bought must be registered with the registration authority as the conveyance does not operate at law until such time as the register has been amended. Form CA6, available here is to be used for the application which must be made by registered owner or the transferee.
Severance and transfer
Straightforward severance is prohibited under the 2006 Act but there are certain circumstances when it is possible:
i. Where the rights are to be transferred to a Commons Council
ii. Where the rights are to be transferred to Natural England
iii. Where severance takes place when a local order under Schedule 1 is in force
In case ii Natural England must have notified interested parties including local associations and have the consent of any commons council, or equivalent body, before the severance can take place. The consent of the owner of the common is also required. Once agreed a registration of apportionment may be required before the severance can be registered.
Surrender and extinguishment
As in this section in Historic Events common rights can be surrendered and extinguished but the difference is that common law is no longer valid. For common rights to be extinguished through surrender, unity of ownership, abandonment or conversion of the dominant tenement, an application in a prescribed form is required under s13 of the 2006 Act. The model form is CA7, available here.
Statutory disposition
The deregistration of land as a result of compulsory purchase is discussed under Historic Events. Under section 14 it is compulsory for the deregistration and cessation of rights to be notified in the prescribed form to the registration authority and they do not take effect until the requisite amendments to the register have been completed. The registration authority is under an obligation to process the application in good time so not as to delay the works. If any exchange land needs to be registered as common land that must be completed at the same time.
Attachment
The 2006 Act enables rights in gross to be attached to a dominant tenement on the application of the owner of the rights and the authorised user of the land. This is possible for rights that have always been held in gross or have at some point been severed.
Re-allocation
If part of a dominant tenement is in non-agricultural use or has planning permission for non- agricultural use, an application to make a non pro-rata apportionment can be made. This in effect concentrates the common rights on part of the dominant tenement. The application must be made while both parts of the dominant tenements are in the same ownership. The area which is to be divested of common rights must be in non-agricultural use or have planning permission for non-agricultural use.
Deregistration and exchange
An owner of common land may apply for part of a common to be deregistered under s16 and 17 of the 2006 Act. If the area is more than 200m2 exchange land must be provided.