The Common Land (Rectification of Registers) Regulations 1990

Statutory Instruments

1990 No. 311

COMMON

The Common Land (Rectification of Registers) Regulations 1990

Made

19th February 1990

Laid before Parliament

28th February 1990

Coming into force

21st March 1990

The Secretary of State for the Environment, as respects England, and the Secretary of State for Wales, as respects Wales, in exercise of the powers conferred by section 19(1) and (4)(1) of the Commons Registration Act 1965(2), and now vested in them(3), and of all other powers enabling them in that behalf, and after consultation with the Council on Tribunals under section 10(1) of the Tribunals and Inquiries Act 1971(4), hereby make the following Regulations:—

Title and commencement

1.  These Regulations may be cited as the Common Land (Rectification of Registers) Regulations 1990 and shall come into force on 21st March 1990.

Interpretation

2.—(1) In these Regulations, unless the context otherwise requires,—

“the 1965 Act” means the Commons Registration Act 1965;

“the 1989 Act” means the Common Land (Rectification of Registers) Act 1989;

“the 1971 Regulations” means the Commons Commissioners Regulations 1971(5);

“the Chief Commissioner” means the Chief Commons Commissioner, or the Commissioner appointed under section 17(3) of the 1965 Act to act for the time being in his stead;

“the General Regulations” means the Commons Registration (General) Regulations 1966(6);

“the Clerk” means the Clerk for the time being to the Commons Commissioners;

“concerned authority” means a local authority (other than the registration authority) or a National Park Authority whose area includes any part of the land to which the objection relates;

“Form” followed by a number means the form so numbered in Schedule 1 to these Regulations, or a form to substantially the same effect;

“local authority” means the council of a county, a London Borough, a district, and a parish or community council;

“objection” means a notice of objection under the 1989 Act to the inclusion of land on a register, and “objector” shall be construed accordingly;

“registration” means a registration of land as common land or town or village green under section 4 of the 1965 Act, and “registered” shall be construed accordingly;

“registration authority” means the registration authority for the purposes of the 1965 Act; and

“register unit” has the meaning assigned to it by regulation 10 of the General Regulations.

(2) A requirement to publish a notice or other document is a requirement to cause it to be published in a newspaper circulating in the area of the land affected by the objection to which that notice or document relates.

(3) A requirement to display a notice or other document or copies thereof is a requirement to treat it for the purposes of section 232 (public notices) of the Local Government Act 1972(7) as if it were a public notice within that section.

Official stamp of registration authority

3.—(1) Every registration authority shall have an official stamp for the purposes of the 1989 Act, as follows:—

COMMON LAND (RECTIFlCATlON OF REGISTERS) ACT 1989 (Name of registration authority)REGISTRATION AUTHORITY

(Date)

(2) A requirement upon a registration authority to stamp any document is a requirement to cause an impression of the said official stamp to be affixed to it, and that the impression shall bear the date mentioned in the requirement or (where no date is mentioned) the date when it was affixed.

(3) An indication in any form in Schedule 1 to these Regulations that the form shall bear the of ficial stamp of a registration authority is a requirement upon the authority to stamp it.

Form and content of objections

4.  An objection must be in Form 42 and accompanied by:—

(a) a plan describing the land to which the objection relates and referred to in the objection, and which—

(i) comprises or is reproduced from an Ordnance Survey Map, to a scale of 1:1250 or 1:2500 if an Ordnance Survey Map to that scale is available; and otherwise, to a scale of not less, or not substantially less, than 1:10,000 or 6 inches to 1 mile;

(ii) shows the land to which the objection relates by means of a coloured verge inside the boundary (such verge being of a transparent colour other than black, and being placed with its outer edge touching the boundary); and

(iii) shows sufficient of the surrounding area to enable that land to be identified on a map to a scale of 1:10,000 or 6 inches to 1 mile.

(b) such documents or copies thereof and such statutory declarations by persons who would be witnesses at a hearing as show the case which the objector would present in support of his objection if a hearing were held; and

(c) a fee of £100.

Publicity

5.—(1) Upon receiving an objection which complies with regulation 4, a registration authority shall:—

(a) allot a distinguishing number (from a single series) to it, and mark the objection with that number;

(b) send to the objector a receipt for his objection and the fee, containing a statement as to the number allotted to the objection;

(c) display a notice in Form 43;

(d) send a Form 43 notice to each of the persons mentioned in paragraph (4) hereof, and to the Clerk;

(e) affix a Form 43 notice in a conspicuous position to some object on or near to the land;

(f) publish a notice in Form 43; and

(g) make a copy of the objection, of the plan, and of the documents and statutory declarations submitted with it, and make such copy available for public i nspection at all reasonable times.

(2) Every Form 43 notice, other than a notice published in accordance with paragraph (1)(f) above, shall have attached to it a plan which complies with regulation 4(a)(i) and

(iii) and which shows the land hatched black.

(3) The Clerk shall send to the objector and to the registration authority a copy of any written representations received by him.

(4) The persons on whom a Form 43 notice is to be served are:—

(a) every concerned authority;

(b) where the register maintained under the 1965 Act states the address of any person (other than the objector)—

(i) who is registered as the owner of the land;

(ii) on whose application the land was registered as common land or town or village green;

(iii) on whose application any right of common was registered over the land;

(iv) whose application is noted under section 4(4)

of the 1965 Act or under regulation 9(5) of the General Regulations; or

(v) who, subsequent to the date of registration of a right of common over the land, has become entitled to that right,

the owner or occupier (by that description) at that address;

(c) where it appears from that register that a right of common over the land is attached to land which includes a dwelling, the owner or occupier (by that description) of that dwelling;

(d) where the name and address of the owner of the land are stated in Part 5 of Form 42, that person at that address; and

(e) the Open Spaces Society.

(5) In this regulation, “the land” means the land in respect of which the objection is made.

Reference to Commons Commissioner

6.  The registration authority shall comply with section 1(4) of the 1989 Act by lodging with the Clerk:—

(a) the documents referred to in regulation 4(a) and (b);

(b) a certified copy of the register unit containing the land in respect of which the objection is made, together with an extract from the register map showing the land comprised in that unit;

(c) a list of the names (where known) and addresses of the persons to whom a Form 43 notice was sent; and

(d) a certificate as to the date on which a Form 43 notice was first published.

Entry of reference

7.—(1) Upon an objection being referred to a Commissioner, the Chief Commissioner shall cause the Clerk—

(a) to enter particulars of the reference in a register of references;

(b) to notify the objector of the reference; and

(c) to inform the objector, the registration authority, and any person making written representations to the Clerk, of the number of the reference, which shall thereafter constitute the title of the proceedings.

(2) Regulation 10 of the 1971 Regulations shall not apply to a reference under these Regulations.

Hearings

8.—(1) If, after examining the notice of objection and the documents accompanying it, a Commissioner proposes to make a decision without holding a hearing, he shall give notice in writing of his intention to do so (stating the effect of the decision which he proposes to make) to every person who then appears to him to be entitled to be heard at a hearing under regulation 12(1)(a) to (d); and if within 28 days of such notification any such person requests him to do so, he shall hold a hearing.

(2) No hearing shall be held, nor shall a decision without a hearing be given, before the expiration of 42 days from the date on which a Form 43 Notice was first published in accordance with regulation 5(1)(f).

Notice of hearing

9.—(1) Where a Commissioner has arranged a hearing for the purpose of inquiring into an objection he shall give at least 28 days' notice of the date, time and place of the hearing or, if a date and time have not been fixed, of the order in which hearings are to be held commencing at a stated date, time and place, to every person who then appears to him to be entitled to be heard at a hearing under regulation 12(1) to (d), and shall, at least 10 days before the hearing is due to take place, publish a notice giving particulars of the hearing.

(2) Where, after the provisions of paragraph (1) above have been complied with in relation to a hearing, the Commissioner alters the arrangements for the hearing, he shall give notice of the alteration to the persons to whom notice of the hearing was given under that paragraph, and publish notice thereof.

(3) The periods of notice for the purposes of paragraph (2) above shall be such periods as may be reasonable in the circumstances: provided that where the date of a hearing has been altered, a period of at least 28 days for the giving, and at least 10 days for the publication, of notice shall be sufficient for the purposes of that paragraph.

Holding of hearings

10.—(1) Where a hearing has been arranged for the purpose of inquiring into an objection, the Commissioner shall hold the hearing accordingly.

(2) A Commissioner shall sit in public except when hearing an application for an order or directions of an interlocutory nature.

Procedure generally

11.  Except as otherwise provided in these Regulations, the procedure at any hearing shall be such as the Commissioner shall in his discretion determine.

Persons to be heard

12.—(1) The following persons shall be entitled to be heard at the hearing:—

(a) the objector;

(b) the registration authority;

(c) any person on whom a Form 43 notice is served under regulation S(4);

(d) any person who has made written representations to the Clerk; and

(e) any person who satisfies the Commissioner at the hearing that he—

(i) is the owner of a legal estate in any part of the land the subject of the objection, or

(ii) has a right of common over any such land.

(2) The Commissioner may hear any other person appearing to him to have a sufficient interest, and may direct that regulations 13 and 18, or either of them, shall apply as if that person were a person entitled to be heard.

Representation at hearing

13.  A person entitled to be heard at any hearing may be represented by counsel or solicitor, or, with the leave of the Commissioner, by any other person.

Default of appearance

14.—(1) A Commissioner may, if he thinks fit, proceed with a hearing in the absence of any person entitled to be heard: provided that, where there has been a hearing under this regulation in the absence of a person entitled to be heard, the Commissioner may, on an application made by that person in accordance with paragraph (2) below, reopen the hearing and set aside any decision on such terms as he thinks fit if he is satisfied that that person had sufficient reason for his absence.

(2) An application by any person under this regulation must be made within 10 days from the date on which notice of the decision was sent to that person.

Evidence

15.—(1) Evidence before a Commissioner may be given orally or, if the persons entitled to be heard consent or the Commissioner so orders, by affidavit, but the Commissioner may at any stage of the proceedings make an order requiring the personal attendance of any deponent for examination and cross-examination.

(2) A Commissioner may require evidence to be given on oath, and for that purpose he shall have power to administer oaths and take affirmations.

(3) The Clerk shall have power to administer oaths and take affirmations for the purpose of affidavits to be used in proceedings before a Commissioner.

Attendance of witnesses

16.—(1) Subject to the following provisions of this regulation, where a witness is required by any person entitled to be heard at a hearing to attend the hearing to give oral evidence or to produce any document in his possession or power, the Commissioner shall upon the application of the person requiring the attendance of the witness issue a summons in accordance with regulation 23(1) of the 1971 Regulations which must be served on the witness by the person requiring his attendance, who must at the same time pay or tender to the witness a sum sufficient to cover his reasonable expenses for travelling to and from, and his attendance at, the hearing, and, where appropriate, of the production of the document.

(2) No person shall be required to give any evidence or to produce any document which he could not be required to give or produce on the trial of an action in the High Court.

(3) No person shall be required to attend to give evidence or to produce any document unless his expenses are paid or tendered to him in accordance with paragraph (1) above.

(4) The Chief Land Registrar shall not be required to produce any document in his custody, but a Commissioner may, upon such application as is mentioned in paragraph (1) above, require any person who is entitled to authorise the production by the Chief Land Registrar of any document to do so, and in such case paragraphs (2) and (3) above shall apply as if that person had been required to produce that document.

Expert witnesses

17.—(1) Not more than one expert witness in support of or against the objection shall be heard unless the Commissioner otherwise orders.

(2) An application for leave to call more than one expert witness may be made to the Commissioner at or before the hearing.

Rights of persons entitled to be heard

18.—(1) A person entitled to be heard at a hearing may give evidence, address the Commissioner, tender documentary evidence and call witnesses and examine them.

(2) A person entitled to be heard who supports the objection may cross-examine any person who has given evidence against it, and a person entitled to be heard who is against the objection may cross-examine any person who has given evidence in support of it.

View of land

19.  A Commissioner may, if he thinks fit, inspect any land which is the subject of the objection and, so far as may be practicable, any other land to which his attention may be directed. The Commissioner shall give notice, either orally at the hearing or in writing, of his intention to inspect any land to the persons entitled to be heard who have appeared at the hearing, and such persons and their expert witnesses shall be entitled to attend the inspection.

Preliminary point of law

20.—(1) The Chief Commissioner may, on the application of any person entitled to be heard, order any point of law which appears to be in issue in the proceedings to be disposed of at a preliminary hearing before a Commissioner sitting in public. If, in the opinion of such Commissioner, the decision on the point of law substantially disposes of the proceedings, he may order that the argument shall be treated as the hearing of the case or may make such other order as may seem just.

(2) Regulation 8(2) above (Hearings) and regulation 9 (Notice of hearing) shall apply for the purpose of a hearing is a hearing under this regulation.

(3) Notices given under the said regulation 9 as applied by this regulation shall include a statement that the hearing under this regulation and an explanation in general terms of the effect of paragraph (1) of this regulation.

Change of Commissioner

21.  Where any proceedings have been begun by or before a Commissioner, but have not been concluded, the Chief Commissioner may direct, or, where the Commissioner has died or become incapacitated or for some other reason is unable to continue with the proceedings, shall direct, that the proceedings be continued by or before such other Commissioner as shall be named in the direction.

Notification of Commissioner’s decision

22.—(1) The decision of a Commissioner upon any matter referred to him under the 1989 Act shall be given in writing, and shall include a statement of the reasons for the decision and an explanation in general terms of the effect of section 18(1) of the 1965 Act (Appeals from Commons Commissioners) and of rules of court made thereunder.

(2) Where a decision is given without a hearing the fact shall be stated in the decision.

(3) As soon as possible after a Commissioner has decided a matter referred to him under the 1989 Act, he shall send a copy of the decision to every person who was entitled to be heard at the hearing (whether or not he appeared at the hearing) and to any person who was heard under regulation 12(2).

(4) Where a copy of a decision is sent under paragraph (3) above to a person entitled to make an application under regulation 14 (Default of Appearance) the copy shall be accompanied by an explanation in general terms of the effect of that regulation.

Final disposal of objection

23.—(1) Upon the receipt by a registration authority of a decision by a Commissioner that he considers that the requirements specified in section 1(2) of the 1989 Act are satisfied in the case of the land to which the objection related or in the case of any part of it, it shall modify the register substantially in accordance with Standard Entry 10 in Schedule 2 to these Regulations and shall mark the register map accordingly; provided that no such modification shall be made—

(a) before the end of the period during which an appeal can be brought against a Commissioner’s decision; or

(b) if such an appeal is brought, before it is finally disposed of.

(2) Within 21 days after making such modification, the registration authority shall give written notice thereof, with particulars of the modification made, to every concerned authority and to the objector.

Notices etc.

24.—(1) Any notice under these Regulations which is not required to be in any special form shall be in writing.

(2) Any notice or other document required or authorised by these Regulations to be sent or given to any person shall be deemed to have been duly sent or given to that person—

(a) where that person is a company, if the document is addressed to the secretary of the company at its registered office or at its principal office or place of business, and is either—

(i) sent by post by recorded delivery, or

(ii) delivered at the registered office, or at the principal office or place of business, of the company;

(b) where that person is a public body, or a corporation, society or other body, if the document is addressed to the clerk, secretary, treasurer or other head officer of that body, corporation or society at its principal office, and is either—

(i) sent by post by recorded delivery, or

(ii) delivered at that office;

(c) in the case of a notice served in accordance with, or on a person mentioned in, regulation 5(4)(b), (c) or (d), if the notice is addressed as provided in that regulation and is sent by post by recorded delivery or is delivered there;

(d) in any other case, if the document is addressed to that person, and is either sent by post by recorded delivery to his last known address, or is delivered there.

(3) Where any such document is to be given or sent to any person with respect to any land or right belonging to an ecclesiastical benefice of the Church of England, a copy thereof shall be sent to the Church Commissioners.

(4) Any application or communication to be made to a Commissioner in respect of any proceedings shall be addressed to the Clerk.

(5) Nothing in this regulation affects the application of section 231 of the Local Government Act 1972 (Service of notices on local authorities, etc), as amended.

Substituted service

25.  If any person to whom any notice or other document is required to be sent or given for the purposes of these Regulations cannot be found, or has died and has no personal representative, or is out of the United Kingdom, or if for any other reason service upon any such person cannot be readily effected in accordance with these Regulations, the Chief Commissioner may dispense with service upon that person or may make an order for substituted service in such other form (whether by advertisement in a newspaper or otherwise) as the Chief Commissioner may think fit.

Clerical errors

26.  A Commissioner shall have pawver to correct, in any document prepared by him or under his authority in pursuance of any provision of the 1989 Act or these Regulations, any clerical mistake or error arising from any accidental slip or omission.

27.  Regulation 16(5)(d) of the General Regulations and regulation 9(6)(d) of the Commons Registration (Objections and Maps) Regulations 1968(8) shall be amended by the insertion after the words “the Act” of the words “or by virtue of the Common Land (Rectification of Registers) Act 1989”.

Chris Patten

Secretary of State for the Environment

19th February 1990

Peter Walker

Secretary of State for Wales

19th February 1990

Regulation 2

SCHEDULE 1

Form 42 (Notice of objection)

Form 43 COMMON LAND (RECTIFICATION OF REGISTERS) ACT 1989REMOVAL OF LAND FROM REGISTER

Regulation 23

SCHEDULE 2 STANDARD ENTRY NO. 10

Explanatory Note

(This note is not part of the Regulations)

The Common Land (Rectification of Registers) Act 1989 (c. 18) enables the removal from the registers of common land and town and village greens, maintained under the Commons Registration Act 1965 (c. 64), of land on which there is a dwellinghouse or which is ancillary to a dwellinghouse, and in respect of which that requirement has been satisfied at all times since 5 August 1945. These Regulations prescribe the procedure and, in the Schedules, the forms.

The notice of objection to the inclusion of the land on a register must be in Form 42 (forms 1-41 have been prescribed by regulations made under the 1965 Act). The notice must be accompanied by the evidence in support of the objection (regulation 4).

The registration authority must give publicity to the objection, and Form 43 is prescribed for this purpose (regulation 5). The matter is then to be referred to a Commons Commissioner (regulation 6).

The procedure of the Commons Commissioners in dealing with the objection is prescribed by regulations 7-22. A Commissioner must hold a hearing if so required by a person entitled to be heard. Regulations 10-20 prescribe the procedure in relation to hearings, which substantially reflects the procedure in Part II of the Commons Commissioners Regulations 1971 (S.I. 1971/1727) for hearings under the 1965 Act.

The action to be taken by the registration authority upon receipt of the Commissioner’s decision is prescribed by regulation 23 and Standard Entry 10 is prescribed for the purpose of amending the register (Standard Entries 1-9 have been prescribed by Regulations made under the 1965 Act).

Provision is made for the official stamp of the registration authority (regulation 3), the service of notices (regulations 24 and 25), and dealing with clerical errors (regulation 26). Regulation 27 makes consequential amendments to the Commons Registration (General) Regulations 1966 (S.I. 1966/1471) and the Commons Registration (Objections and Maps) Regulations 1968 (S.I. 1968/989).

(1)

See the definition of “the Minister” in section 22(1)

(2)

1965 c. 64; section 19(1) and (4) were extended by section 2 of the Common Land (Rectification of Registers) Act 1989 (c. 18)

(3)

S.I. 1967/156and 1970/1681

(4)

1971 c. 62

(5)

S.I. 1971/1727

(6)

S.I. 196611471, to which there are amendments not relevant to these Regulations.

(7)

1972 c. 70

(8)

S.I. 1968/989With correction slip dated April 1990