Whilst common land has an owner, it also carries rights for other people that enable them to use the land. These people are known as commoners and may hold rights over the land, including grazing rights and rights to take specified natural produce such as wood, peat or bracken.
Under the Countryside and Rights of Way Act 2000, the public also have a right to walk on most commons. Some commons already had a pre-existing right of access that endures, for example a right to ride horses.
Common land is also bound by a separate consenting regime. Landowners wishing to develop the land or erect fencing, gates, hardstanding or tracks often require separate common land consent in addition to other consents such as planning permission.
Given registration as common land grants the public a right of access and makes the land more difficult to develop, registration can have a significant impact on the value of the property and lendability.
Can Land be Registered as Common Land Without the Owner’s Consent?
Most land that is now registered as common land derives from historic rights of common exercised over private land. Whilst common land can be registered through the voluntary actions of a landowner, the law also permits applications to register land as common land in certain circumstances. This can occur even where the current owner disputes that status.
Paragraph 4, Schedule 2 of the Commons Act 2006 permits a review of certain failed applications to register common land made under the Commons Registration Act 1965 in certain ‘pioneer authorities’, where implementation of the 2006 Act occurred before the wider implementation of the Act across England. Although applications under this provision had to be made before a 2020 deadline, many local authorities continue to determine outstanding applications due to significant administrative backlogs.
If you are a landowner and have received notification from your local council that an application has been made to register your land as common land, when drafting your objection you will need to consider the relevant legal tests. Arguments relating to loss of value, development potential or personal impact on the landowner are unlikely to carry weight. The key issue will be whether the statutory requirements for registration have been satisfied.
What are the Statutory Requirements for a Paragraph 4 Application?
To succeed under Paragraph 4, an application has to demonstrate that the land was ‘waste land of the manor’ at the time of submission.
The land must be manorial in origin. A manor was the basic unit of rural landholding that emerged after the Norman Conquest; it was a legal and economic estate over which the lord of the manor exercised certain rights.
If the applicant can demonstrate the existence of a particular manor, and that the relevant land formed part of that manor, they shall need to demonstrate that the land formed ‘waste land’, for which there are three general tests – was it open, uncultivated and unoccupied at the time of submission?
Open, in this context, means unenclosed. Land that was not fenced or walled for a particular purpose generally satisfies this test; if land was not ‘waste’ of the manor but worked for a purpose, it would have been enclosed to enable that purpose to occur.
Uncultivated is an assessment of whether the land has been cultivated for a particular purpose. Land that has been taken into arable cultivation or forestry will undoubtedly be cultivated; again, ‘waste’ of the manor would not have been worked for a purpose, therefore would be uncultivated.
Land that had a particular purpose would have been occupied for that purpose, therefore ‘waste’ land would have been left unoccupied. This test considers whether the landowner occupied the land at the time of the application, or whether it was left unoccupied.
These tests are cumulative and must all be satisfied for an application to succeed.
How to Oppose a Paragraph 4 Application?
Effective objections focus on the statutory requirements rather than the practical consequences of registration. Whilst registration as common land can affect the value and management of the land, these factors are unlikely to be relevant to the registration authority’s decision. The key question is whether the applicant has established the legal requirements for registration.
Every application turns on its own facts and evidence. The outcome will often depend upon the interpretation of historic records and whether the applicant can establish each element of the statutory test. Careful scrutiny of the evidence is therefore essential.
Landowners notified of a registration application should seek professional advice promptly. An early assessment can help identify the strengths and weaknesses of the application, inform the preparation of any objection and ensure that opportunities to challenge the application are not missed.
This article was written by Oliver Bradbear, Solicitor in our Planning team.