When the registers of common land were compiled some land that could have been registered was not. Similarly, some land was mistakenly recorded as common land even though it wasn’t common land.
Owners of common land are increasingly applying to de-register it as common land, either because it was mistakenly registered, or possibly because they want to carry out works on it without having to obtain permission.
What routes can be taken to de-register common land?
Before December 2014, unless a landowner made an application under s16 of the Commons Act 2006, there was no way of correcting an error in the Register.
Section 16 of the Commons Act 2006 requires that a landowner makes an application for de-registration and exchange. The application costs £4,900 and is made to the Planning Inspectorate.
If the area to be de-registered is more than 200 square meters the applicant must offer to register an alternative site as common land in place of that which is being de-registered.
If the area to be de-registered is less than 200 square meters the applicant does not have to offer land in exchange but it is expected to do so, with their application likely to fail without an exchange.
Realistically, therefore, before the changes section 16 of the Commons Act 2006 left landowners with mistakenly registered land unable to do anything in practice without facing huge expenses and giving up alternative parcels of land.
Since the 2014 provisions came into force all common land can, if it fulfils certain criteria, now be added or removed from the Register of Common Land. The section 16 Commons Act 2006 route is still available but landowners can consider other options as well.
In certain circumstances where a mistake has been made by the Commons Registration Authority the Authority can correct that mistake pursuant to section 19 of the Commons Act 2006, for example, where a mistake was made when making or amending the Register. This is generally used to correct an administrative error and there is no fee to pay.
A further route available to landowners is to apply to deregister land wrongly registered as common land pursuant to paragraph 7, Schedule 2 of the Commons Act 2006, provided that the landowner meets certain criteria:
- The land must have been provisionally registered as common land between 2 January 1967 and 31 July 1970;
- The provisional registration must not have been referred to a Commons Commissioner;
- The provisional registration must have subsequently become final; and
- Immediately before its provisional registration the land was not subject to various rights and uses.
A final option regards where a landowner's building has been wrongly registered. Paragraph 6 of Schedule 2 of the Commons Act 2006 gives owners of common land the ability to apply to have common land deregistered if it was covered by a building or was within the curtilage of a building at the date the land was registered as common land, and the building/curtilage of a building is still covering the land.
As can be seen, there are now a number of options at the landowner's disposal.
If you are a landowner seeking to de-register common land get in touch on +44 1392 685371 or email [email protected].