Tracing Ownership of Commons
Background
The Commons Registration Act 1965 made provision for “unclaimed” town and village greens to be vested in the local authority. It did not make a similar provision for other common land but only allowed for a local authority to take steps for the protection of unclaimed common land in its area against unlawful interference.
The Act did not impose a duty on local authorities and consequently much unclaimed land remained in a state of limbo and under constant threat of encroachment and mismanagement. The 1965 Act did provide that unclaimed common land could “be vested as Parliament may hereafter determine” and it was anticipated that the Commons Act 2006 would legislate for this statutory vesting. However, this did not happen and the 2006 Act allowed, in s.45, for a continuation of the position post-1965.
Before you start – a checklist for tracing ownership
Check the ownership section of the commons registry
Check the national Land Registry
Make enquiries locally – large estates, local history societies, archives at the local records office, commons associations, manor courts.
Management options when ownership remains unknown
There are a number of options that can be explored for improving the management of commons where ownership cannot be traced or proven:
Commons Act 1899: This act enabled district councils, and subsequently National Park Authorities, to manage and improve commons in the public interest. This was done by adopting a scheme in a prescribed form for which Secretary of State approval was not required. The scheme could be vetoed by the owner (if subsequently identified) or by persons representing one third in value of the interests of the commoners. It enabled the local authority to make bylaws and to delegate management to a local council such as a parish council. This delegated management option is still available and was amended by the 2006 Commons Act which provided an expanded definition of the public interest to include nature conservation, the conservation of the landscape, the protection of access rights and the protection of archaeology.
Open Spaces Act 1906: The Open Spaces Act 1906 enabled local authorities to acquire open spaces in their district in order to undertake the care and management of them for the enjoyment of the public. The land thus acquired is meant to be unoccupied and the process is consequently of more relevance to abandoned commons. Nonetheless it has been applied to commons with active graziers.
Local Government Acts: It is possible to spend local authority funds on the promotion of the well being of an area. Areas of common offering scope for recreation and access would lend themselves to this requirement.
Limitation Act 1980: A local authority might be able to claim adverse possession under the Limitation Act 1980. However, evidence of positive management throughout a 12 year period would be required and consequently this is unlikely to result in the transfer of much land into local authority ownership.
Unknown ownership and agri-environment agreements
Natural England requires the consent and signature of the owner(s) when entering common land into agri-environment agreements. However, if it can be shown by the applicants that the owner is not known and that reasonable efforts have been made to determine ownership then they will allow common land to enter an agreement without the signature of the landowner.
Further information and signposting