Section 18 Conclusiveness
103.Section 10 of the 1965 Act provides that “the registration … of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration”. Section 18 makes similar provision as to the extent to which information in the registers can be relied on. It is immaterial for the purposes of this section whether an entry in the register was made after commencement of the Act or under the 1965 Act — see subsection (6).
104.Under subsection (2), where land is registered as subject to a right, it is deemed to have become subject to the right on its registration if it would not otherwise have been so subject. It can therefore be assumed that, in law, the land is subject to the right. Subsection (2) does not in itself guarantee that the land continues to be subject to the right. But, given the preceding provisions of the Act, it is in most cases impossible for the situation to have changed, since the right cannot be extinguished by common law, and cannot be surrendered or varied without the surrender or variation being registered. One possible exception is an extinguishment or variation of the right by virtue of another enactment which may have effect before the necessary amendment is made to the register (for example, by a compulsory purchase order made under the Acquisition of Land Act 1981). But section 14(5) enables regulations to be made which cause the effect of such an enactment to be delayed until the register is amended.
105.Subsection (3) provides that, where the register shows that a right of common is attached to land, the right is deemed to be attached to that land upon registration. Subsection (3) does not in itself guarantee that the right continues to be attached to that land. But again, given the provisions of the Act, it is in most cases impossible for the situation to have changed, since the effect of subsection (6), and the prohibition on severance contained in section 9, is generally that any right of common registered as attached to land(27) will continue to be attached to land. The exceptions are either that an application is made under paragraphs 1 or 3 of Schedule 1 to sever the right, or that an application is made during the transitional period (see Schedule 3 and the notes to that Schedule) for an amendment to the register to show that the right had been severed after the register entry was made but before the commencement of Schedule 3(28), and the commons registration authority is satisfied that the register should be amended to give effect to the severance. In either case, the severance of the right will then be registered.
106.Subsection (4) provides that, where the register shows that a person is the owner of a right of common in gross, that person is to be taken as the owner upon registration, even if he or she would not otherwise be the owner. Section 12 provides that a transfer of a right held in gross cannot be effective in law unless the transfer is registered under that section, thereby ensuring that the register remains an accurate record of ownership of such rights.
107.Subsection (5) preserves what is believed to be the present position under the 1965 Act, which is that, where a right of common is subject to any customary constraint not mentioned in the register (for example, that the rights may be exercised only at certain times of the year, that stock should be hefted in accordance with local custom, or that the times at which stock may be turned out are to be determined by a manorial or other ancient court29), those constraints are preserved notwithstanding that they are not mentioned in the commons registers.
The rights section of the commons registers prepared under the 1965 Act is prescribed in Form 3 of Schedule 1 to the Commons Registration (General) Regulations 1966 (SI 1966/1471). Column 5 of the prescribed form provides for entries describing “Particulars of the land (if any) to which the right is attached”.
Subject to regulations made under paragraph 5 of Schedule 3.
The jurisdiction of certain ancient courts to transact customary business was preserved by section 23 of the Administration of Justice Act 1977.
