Guidance

Commons registers: apply to record new events

Find out how you can apply to change the commons registers to record a new event.

You can apply to register new events dating from 1 October 2008 to the following local authorities:

You can apply to register new events dating from 15th December 2014 to the following local authorities:

Events that happened before the dates specified above are called historic events.

You can’t apply if the land or right of common is not in any of these areas.

The commons registers are held by commons registration authorities. These are the top-tier local authority for an area (such as a county council or a metropolitan borough). Find more information about applying to change the commons registers to help you with your application.

The common land where a right of common can be used is called the ‘servient tenement’. The right of common belongs to a separate piece of land, which is called the ‘dominant tenement’ (for example a farmhouse). The owner or occupier of the dominant tenement can use the right of common on the servient tenement.

Apply to create a new right of common

You can apply to create a new right of common for:

  • new land (which will then be registered as common land)
  • land that is already registered as common land

If you apply to create a new right of common to graze animals, the registration authority has to consult Natural England before making a decision about whether the land can sustain those grazing animals alongside any existing rights. However, the registration authority makes the final decision. It must reject your application if your application would add more animals than the common can sustain.

Who can apply

You can apply if you’re the owner of the:

  • servient tenement
  • dominant tenement

Use form CA1. You’ll be applying under Section 6.

What you can’t apply for

Under Section 6, you can’t create new rights of common:

  • over an existing registered town or village green
  • by reservation (for example for certain months or parts of the common only) or prescription (a long period of use that has been unchallenged by the landowner)
  • ‘in gross’ (in other words, when the rights are given to a person under a deed rather than belonging to a dominant tenement)

You can apply to register a right of common as a historic event if that right of common came into existence before the dates specified at the top of this guidance. Use form CA14. You’ll be applying under Schedule 3.

Apply to vary a right of common

You can apply to vary an existing right of common so that:

  • you can alter what the right entitles you to do
  • you can use it on a piece of land that is added to the existing land
  • you can use it on new land, instead of all or some of the land on which you could previously use it

If the variation will create a new right of common to graze animals, the registration authority has to consult Natural England before making a decision about whether the land can sustain those grazing animals alongside any existing rights. However, the registration authority makes the final decision. It must reject your application if your application would add more animals than the common can sustain.

Who can apply

You can apply if you’re:

  • the owner of any part of the existing common
  • the owner of any land that will become a new part of the common
  • the owner of the dominant tenement
  • the registered owner of a right in gross

Use form CA2. You’ll be applying under Section 7.

Where you’re applying to vary part of a right of common, but not all of it, you must also apply at the same time to apportion the right (see guidance above on applying to apportion a right).

What you can’t apply for

You can’t apply to vary a right of common so that the right can be used on land that is already registered as a town or village green.

You can usually only apply to vary a right to reduce the area of land over which a right of common can be used, if you provide replacement land. However, you may be able to do that by applying to surrender (give up) a right of common under Section 13 using form CA7.

You can’t apply for a change in the dominant tenement under Section 7. You can use form CA5 instead but only if part of the dominant tenement is being used for non-agricultural purposes.

Apply to apportion rights of common

You can apply to divide a right of common. This is called ‘apportionment’, and it happens when a dominant tenement is divided into 2 or more lots that are separately owned. The right is divided into the same proportions as the split in the dominant tenement. For example, if the right of common is to graze 100 sheep and the dominant tenement is divided into two lots on a 70/30 basis, the first lot’s right will be to graze 70 sheep and the second lot’s will be to graze 30 sheep.

You can apply to apportion a right of common if you own a part, but not all, of the dominant tenement. By doing so, you’re effectively claiming your share of the total right of common.

Where you own part, but not all, of the dominant tenement, you must apply to register an apportionment of rights if they are to be:

  • surrendered (given up)
  • varied (changed)
  • reallocated (where part of the dominant tenement is used for non-agricultural purposes)
  • severed (split away from the dominant tenement)
  • extinguished or transferred to new land due to a statutory disposition (for example a compulsory purchase order) These will each require their own application, which is called the ‘primary application’. In these cases, you must apply to the registration authority to register the apportionment at the same time as you make the primary application.

You can apply to register apportionment on your own or together with the other owner(s). If you apply on your own, the register will be only be changed to show the changes that relate to you. The entry relating to the other owner(s) won’t change.

Who can apply

You can apply if you’re the person making a primary application. If more than one person was involved in your primary application then all must apply to register the apportionment too. But if there is no primary application involved then you apply if you own any part of the dominant tenement, or you can apply jointly with the other owners of the dominant tenement.

Use form CA3. You’ll be applying under Section 8.

Your share of the right of common will be the same as your share of the dominant tenement. You can use MAGIC to measure the approximate area of a defined parcel of land.

You can only apply to apportion a right of common if it is quantified (in other words, it is measured in numbers) and attached to land. For example, if you have a third of the dominant tenement, you will have a third of the rights. However, if your right is to graze animals, you can only graze whole numbers of animals. So if dividing the rights gives you 12.75 animals, you can actually only graze 12 animals.

What you can’t apply for

You can’t apply to apportion a right that is unquantified (in other words, it’s not measured in numbers and it’s therefore unlimited). For example:

  • a right to cut peat or turf (called ‘turbary’)
  • an unquantified right to take wood (called ‘estovers’)
  • unquantified fishing rights (called ‘piscary’)

Apply to attach a right of common to land

You can apply to have a right of common that is currently held in gross attached to land (which would turn that land into a dominant tenement). The result is that the right becomes usable by the occupier of the dominant tenement.

Who can apply

You can apply if you’re the registered owner of the right of common held in gross and you either occupy the dominant land to which the right will be attached, or the occupier of that land consents to your application.

Use form CA4. You’ll be applying under Section 10.

Apply to reallocate an attached right of common

You can apply under Section 11 to alter a right of common where part of the dominant tenement is developed for non-agricultural uses (called the ‘relevant part’), so that the right of common is attached to the reduced area of the dominant tenement which remains in agricultural use. This is called reallocation. Land is considered in agricultural use if it is used for the following purposes:

  • growing crops
  • pasture or grazing
  • forestry
  • keeping land as woodland or scrubland
  • any activity that receives a payment under the EC (Single or) Basic Payment Scheme

For example the relevant part can be taken out of agricultural use through a compulsory purchase order to develop the land or where it has planning permission for a change of use to a non-agricultural use. In the case of a compulsory purchase order, you must apply after the order has been confirmed but before the ownership of the relevant land is transferred to the new landowner (which will be specified in the order). If you’re not sure when the relevant part will be transferred ask your legal adviser or the compulsory purchase authority.

Who can apply

You can apply if you’re the owner of the dominant tenement (including the relevant part).

Use form CA5.You’ll be applying under Section 11.

Where you’re applying to reallocate part of a right of common, but not all of it, you must also apply at the same time to apportion the right (see guidance above on applying to apportion a right).

Apply to transfer rights in gross

You can apply to transfer a right of common held in gross (under a deed) to someone else. The person that the right is transferred to is called ‘the transferree’.

Who can apply

You can apply if you’re either:

  • the registered owner of the right of common held in gross
  • the transferee, and you have the written permission of the registered owner

Use form CA6. You’ll be applying under Section 12.

Apply to surrender or extinguish a right of common

You can apply to surrender (make a deed to give it up) a right of common or have it extinguished (cancelled by law). The right is surrendered or extinguished when it has been removed from the commons registers.

Who can apply

You can apply if you own:

  • the dominant tenement
  • a right of common held in gross
  • any part of the servient tenement

Use form CA7. You’ll be applying under Section 13.

Where you’re applying to surrender or extinguish part of a right of common, but not all of it, you must also apply at the same time to apportion the right.

Apply to register a statutory disposition

A ‘statutory disposition’ is a legal instrument which either extinguishes rights of common and the common itself or transfers them to new land which is given in exchange for the land being taken away (for example a compulsory purchase order). There are 16 different types of legal instruments which do this. The instruments are listed in column 1 of the Table in paragraph 8 of Schedule 4 to the Commons Registration (England) Regulations 2014, but for ease of reference they are listed here:

  • the Lands Clauses Consolidation Act 1845, sections 99 and 107, or the Compulsory Purchase Act 1965, section 21 and Schedule 4, which authorise the taking of common land and green (compulsorily if required) for particular purposes, where one or other statute is incorporated in another ‘special’ Act for that purpose. The acquisition of common land under the 1845 Act is generally subject to the approval of the Secretary of State under section 22 of the Commons Act 1899
  • Inclosure Act 1845, sections 147 and 149, which enable the exchange of land, or of a recreational allotment remote from a village, for another more convenient, by order of the Secretary of State
  • Inclosure Act 1846, section 11, which enables the exchange of stinted rights of common between two commons, by order of the Secretary of State
  • Malvern Hills Act 1930, section 8, which confers on the Malvern Hills Conservators a power to sell, lease, exchange or dispose of land regulated as part of the Malvern Hills, subject to the consent of the Secretary of State, and section 9, which confers powers on the Conservators to sell or exchange land regulated as part of the Malvern Hills for the purpose of adjusting, defining or improving their boundaries, subject to the consent of the Secretary of State
  • a conveyance of registered land made for the purpose of sections 13 and 15 of the New Parishes Measure 1943, which enables the Diocesan Board of Finance for the diocese in which the land is situated to acquire land for various purposes connected with the Church of England
  • Greater London Parks and Open Spaces Order 1967, articles 7, 8 and 12, which enable the erection of buildings or permanent inclosure of common land or green; article 15, which confers on London borough councils powers to exchange parts of common land or green for land adjoining; and article 17, which confers on such councils powers to use portions of common land for street improvements.
  • the Countryside Act 1968, sections 6 and 9 and Schedule 2, which confer powers exercisable by local authorities over common land open to public access, in the interests of persons resorting to that land for open-air recreation
  • The Acquisition of Land Act 1981, section 19: a compulsory purchase order in respect of any land forming part of a common other than where the Secretary of State issues a certificate under section 19(1)(aa)
  • the Acquisition of Land Act 1981, paragraph 6 of Schedule 3: a compulsory purchase order in respect of any common land other than where the Secretary of State is satisfied that paragraph 6(1)(a) or (aa) applies and certifies accordingly. See notes above.
  • New Towns Act 1981, paragraph 13 of Schedule 4, which enables the compulsory purchase of registered common land or of a registered town or village green
  • Town and Country Planning Act 1990, section 229 enables the appropriation of land forming part of a common or of a town or village green by a local authority
  • Planning Act 2008, section 131 or 132, which enable the compulsory purchase of common land or town or village green, or of a right of common, in an order granting development consent

Who can apply?

This is generally the person making or applying for a relevant instrument or who will benefit from it – but see column 4 of the Table in paragraph 8 of Schedule 4 to the 2014 Regulations for a list of the possible applicants. There is a legal duty to register a statutory disposition. For example, a London Borough makes a deed to exchange some registered common land and transfer the common and the rights of common to another piece of land (so it can build housing on the old common) under article 15 of the Greater London Parks and Open Spaces Order 1967. It is that London Borough’s duty to register the statutory disposition.

Please contact Defra for advice if you think that any statutory power (whether local or national) has been left out.

Use form CA8. You’ll be applying under Section 14.

Where you’re applying to register a statutory disposition which would extinguish or transfer part of a right of common, but not all of it, you must also apply at the same time to apportion the right (see guidance above on applying to apportion a right).

Apply to register a town or village green

Before you apply, you will need to check whether the recreational use of the land by local people meets the strict test for registration. This includes establishing whether use of the land has been ‘as of right’ (in other words, without permission, without force and without secrecy) rather than ‘by right’ (in other words, because the local authority is legally obliged to make that land available). Your application must show that a significant number of local people have used the green for lawful sports and pastimes as of right for at least 20 years. It will help your case if you’re able to find a range of witnesses who can provide detailed statements.

You’re strongly advised to contact the commons registration authority before applying to register a new town or village green. Where your application is prevented by one of the trigger events set out in Schedule 1A to the 2006 Act (such as a notice of application for planning permission), you can’t apply to register land as a town or village green until that trigger event has been followed by a terminating event (such as the refusal of that application for planning permission).

Your application must show that use of the land meets one of the following criteria:

  • the land has been used for 20 years or more, and is currently in use, for sports and pastimes as of right
  • the land was used for sports and pastimes as of right for 20 years or more, but that use stopped being as of right no more than 1 year before the date you apply

You should check whether the landowner has submitted a ‘landowner statement’ in relation to the land. (The commons registration authority holds a register of landowner statements.) A landowner statement ends any period of recreational use of the land as of right.

The effect of a landowner statement has 2 possible consequences. If the land has been used for:

  • less than 20 years, then an application to register the land as a green will fail
  • more than 20 years, then the 1-year period of grace starts and you can apply under Section 15(1) and rely on the criteria under Section 15(3)

However, a landowner statement doesn’t prevent a new period of use restarting if recreation on the land continues.

Who can apply?

Anyone can apply to register land as a town or village green under Section 15(1) using form CA9 provided that the right to apply for registration has not been excluded.

If you’re a landowner, apply under Section 15(8) using form CA9 to register your own land.

Apply to sever a right of common

You can apply to sever a right of common from the dominant tenement it is attached to. Severance can only happen in two ways: where either Natural England or a commons council apply to sever the right, or where the Secretary of State for Defra makes an order allowing the severance. The right is separated from the dominant tenement and becomes a right in gross which is transferred to either the applicant (public body) or the persons specified in the order.

Severance by transfer to public bodies

Rights can be severed by being transferred to Natural England, a commons council or an equivalent body that represents the interests of the commoners and is designated by order made by Defra (paragraph 1(5) of Schedule 1 to the Commons Act 2006). For example the Dartmoor Commons Council has been designated by order under the Dartmoor Commons (Authorised) Severance Order 2008.

Who can apply?

Only the public bodies mentioned above can apply. Use form CA11. You’ll be applying under Schedule 1 paragraph 1(6)(b) to the Commons Act 2006.
Where you’re applying to sever and transfer part of a right of common, but not all of it, you must also apply at the same time to apportion the right.

Severance authorised by order

You can apply if your name is specified in the order as the person to whom the severed right is to be transferred. Use form CA12. You’ll be applying under Schedule 1 paragraph 3 to the Commons Act 2006, as read with Schedule 4, paragraph 13(1) to the 2014 Regulations.

Apply to declare your entitlement to a right of common

You can apply to record your name in the registers as the person who is eligible to exercise a right of common if that right is attached to a dominant tenement. Many entries in the commons and greens registers show who applied to register rights of common, but not who has the right today.

Who can apply?

Only the owner or tenant (if the tenancy is for more than 6 months) of a dominant tenement can apply. Use form CA15. You’ll be applying under regulation 43 of the Commons Registration (England) Regulations 2014.

Published 12 December 2014