Introductory
Section 1 Registers of common land and greens
41.Section 1 requires commons registration authorities to continue to keep the commons registers first established under the 1965 Act.
Section 2 Purpose of registers
42.Subsection (1) explains that the purpose of the register of common land is to register land as common land and rights of common exercisable over such land. Similarly, subsection (2) applies the same principles in relation to the register of town or village greens. In practice, the form of the register of common land and the form of the register of town or village greens prepared under the 1965 Act were identical in all material respects.
Section 3 Content of registers
43.Subsection (1) provides that the land registered under section 2(1) is to be the same land as was registered as common land under the 1965 Act, together with any other land registered under Part 1 of the Act. In other words, the register of common land will contain all the entries that were previously registered in it under the 1965 Act, together with further entries that may be registered in the future in accordance with the new provisions in the Act. Similar principles are applied to land registered under section 2(2) in the register of town or village greens (subsection (2)).
44.Subsection (3) provides that the rights of common registered are to be the same rights as were registered under the 1965 Act, together with any other rights registered under Part 1. Subsection (4) identifies the information about a right of common which must appear in the commons registers, and subsection (5) enables regulations to be made requiring or permitting other information to be included in the registers, including matters to be noted in the registers. For example, regulations made under the 1965 Act enabled applications to be made to the commons registration authority to note in the register a claim to certain private rights and interests in respect of registered land (such as easements and mineral rights), and enabled the commons registration authority itself to note the existence of certain matters affecting the public interest in common land (such as limitations on a right of public access imposed under section 193(1)(b) of the Law of Property Act 1925).
45.Subsection (6) states that neither land, nor any right of common, that has been registered is to be removed from the commons registers, except as provided by or under Part 1 of the Act or any other enactment. There is provision for land to be removed from the registers in section 16 (deregistration and exchange) and Schedule 2 (Non-registration or mistaken registration of land under the 1965 Act), for corrections to the registers under section 19 which may in certain circumstances result in land being removed from the registers, and power to make provision for land to be removed from the registers in consequence of some other statutory instrument by means of regulations under section 14 (statutory dispositions).
46.Under subsection (7), rights of common registered or eligible for registration under Part 1 are not to be registered in the register of title to land kept by the Land Registry. The register of title is maintained under the Land Registration Act 2002, and the rules made under that Act. This provision does not affect the small number of rights of common which are believed to have been registered in the register of title before the commencement of the 1965 Act.
Section 4 Commons registration authorities
47.Section 4 provides for the continued appointment of certain local authorities as commons registration authorities for the purposes of Part 1. In England, commons registration authorities are county councils, district councils (in areas without a county council) and London borough councils. In Wales, the commons registration authority is the county or county borough council. There is no common land and there are no greens in the Isles of Scilly or in the City of London, and so the councils for these areas are not appointed as commons registration authorities.
48.Subsection (3) provides that commons registration authorities may agree between themselves for one to exercise the registration functions of the other in relation to land straddling their common boundary. It is intended that agreements already in existence for this purpose under section 2(2) of the 1965 Act will continue to have effect.
Section 5 Land to which Part 1 applies
49.Section 5 applies Part 1 to land in England and Wales, other than the land specified in subsections (2) and (3). Those subsections reproduce the effect of exemptions set out in section 11 of the 1965 Act, with the exception of land exempted by orders made under that section. Consequently, none of the provisions in Part 1 apply to the New Forest, Epping Forest or the Forest of Dean, and these notes must be read in that light.
50.The New Forest was excluded from registration under the 1965 Act because it has its own registers of rights of common drawn up under the New Forest Acts 1877–1970. Similar arrangements apply in relation to Epping Forest. Open land in the Forest of Dean is owned by the Crown, which asserts that the land is not subject to rights of common — subsection (3), which repeats a similarly-worded provision in the 1965 Act, is therefore for the avoidance of doubt.
51.Certain other urban commons were exempted from registration by order under section 11 of the 1965 Act because they were already regulated under local Acts or schemes, rights of common were no longer being exercised, and the extent of the common land was already well-defined. Those commons are not excluded from the operation of Part 1, and may qualify for registration under paragraph 2 of Schedule 2. A list of such commons is set out in annex B.