The Law Commission

Appendix d

Commons Commissioners

part i
legislative background

                  D.1               The Commons Registration Act 1965 (the “1965 Act”) required registration authorities[1] in England and Wales to create and maintain registers of common land, and land which is a town or a village green. Registration authorities must also register the rights of common over such land, and the persons claiming to be the owners of such land, or becoming the owners thereof by virtue of the Act.[2] Under s 5 of the 1965 Act, persons may make an objection such a registration,[3] and unless the objection is withdrawn or the registration cancelled, the registration authority shall refer the matter to a Commons Commissioner. Section 8 of the Act requires Commons Commissioners to enquire into, and determine the ownership of, unclaimed land that has been registered under the Act.

                  D.2               Commons Commissioners are constituted under section 17 of the 1965 Act, and the procedure for hearings can be found in the Commons Commissioners Regulations 1971.[4] Essentially, Commons Commissioners only have jurisdiction over applications for registration made before 2 January 1970.[5] However, the Common Land (Rectification of Registers) Act 1989 granted a three year window, beginning with the date of passing of the Act, to object to the inclusion of certain land on the registers. Objections could be lodged if there was a dwellinghouse on the land, or the land was ancillary to the dwellinghouse, and this was the case since 5 August 1945.[6] On the event of such an objection, the registration authority notified the Commons Commissioner who must then inquire into the matter and determine if the above requirements are satisfied.[7] The procedure for these hearings can be found in the Common Land (Rectification of Registers) Regulations 1990.[8]

Part ii
Substantive jurisdiction

                  D.3               The jurisdiction of the Commons Commissioner is referable to the 1965 Act and the Common Land (Rectification of Registers) Act 1989 (the “1989 Act”).

                  D.4               The Commons Commissioners may only act if a registration authority refers the matter to it. They have no power to directly intervene.

                  D.5               Under the 1965 Act, the Commons Commissioners have no jurisdiction over any application for registration made after 2 January 1970. There were two registration periods.[9] Firstly, between2 January 1967 and June 30 1968. Objections to registrations in this period could be made between 1 October 1968 and 30 September 1970. Secondly, registrations could be made between 1 July 1968 and 2 January 1970, to which objections could be made between 1 May and 31 July 1972.[10] Commons Commissioners have no jurisdiction over registrations made outside the above periods. The registration authority itself deals with these.

                  D.6               Temporal jurisdiction under the 1989 Act is limited to the investigation and adjudication of objections to inclusion on the registers, such objections being made between 21 July 1989 and 20 July 1992.

              D.7               After provisional registration of any land as common land, the local authority (known in this context as the registration authority) had to give such notice to the public as prescribed.[11] In the event that an objection was made to the registration, the registration could not become final unless the objection was withdrawn. Section 5 of the Commons Registration Act 1965 required the registration authority to refer any non-finalised registrations to the Commons Commissioner who must inquire into the matter, and either confirm registration with or without modifications, or refuse to confirm.[12] If confirmed, section 6(1)(a) renders the registration final. If refused, the registration is void, subject to appeal.[13]

Vesting of Unclaimed Land

              D.12               Where a section 4 registration has become final but no person is registered as the owner of the land, the registration authority must refer the question of ownership to a Commons Commissioner.[14] The Commons Commissioner will enquire into the matter, and if satisfied that any person is the owner shall direct the registration authority to register that person. If no person can be found, and the land is a town or a village green, then the relevant registration authority under section 8(5) shall be registered as owner. If the land is common land, the Commons Commissioner will take no action, and the registration authority may act to protect the land against unlawful interference.[15]

Removal from Registers

              D.8               During the three years after the passing of the 1989 Act it was possible to object to inclusion on the registers if three criteria were met. Firstly, there had to be a dwellinghouse on the land, or it had to be land ancillary to a dwellinghouse, or the land had to be ancillary to a dwellinghouse not on the land. Secondly, one of these requirements had to be satisfied at all times since 5 August 1945. If notice of objection was given to the registration authority, they had to refer the matter to a Commons Commissioner to inquire into the matter. If satisfied the requirements are met, he or she will give notice to the registration authority to make the necessary amendments to the registers.

              D.9               The 1965 Act,[16] and all other acts regarding common land, apply only in England and Wales. As the Commons Commissioners can only act after a referral by a registration authority, it follows that the territorial jurisdiction of the Commons Commissioners is limited to England and Wales. The devolution of Wales has not affected the territorial jurisdiction of the Commons Commissioners, save that any duties or powers falling to the Minister or Treasury, so far as exercisable in relation to Wales, are transferred to the Welsh Assembly by the National Assembly of Wales (Transfer of Functions) Order.[17]

part iv
relationship with County Court, and further appeals

Residual jurisdiction in the Courts

              D.10               Essentially, the Commons Commissioners have exclusive first instance jurisdiction. However, G D Gadsen has suggested the possibility of a residual jurisdiction in the courts, given the extreme delays that arose in the dispute resolution procedure (upwards of 20 years in some cases). Gadsen posits that hardship might allow the Commissioners’ jurisdiction to be set aside and exercised immediately by the courts.[18]

Before the commissioners were appointed it was held that the courts would intervene and the question might arise in the future whether there was a residual jurisdiction “for instance, to deal with cases where the registration, on the face of it, represents an abuse of the right to registration conferred by the act.”[19] Meggary J. could not see “what there is in the Act of 1965 which so plainly excludes the jurisdiction of the courts that the remedy of declaration and injunction is taken away. The matter seems to me to be one not of jurisdiction but discretion.”[20] The Court of Appeal, whilst not deciding that a residual jurisdiction lay in the courts, thought that it could be used only “in a case in which it was established beyond a peradventure that the applicant for registration was, at the time of the application, or has since become, other than bona fide in his suggestion that this is, or may turn out to be when the whole matter comes before a Commons Commissioner, common land.”[21]

              D.11               For Gadsen, it may still be possible to use the courts if one can show bad faith in an applicant for registration, and the Commissioner’s hearing is a substantial period of time away[22]. It should be noted that Gadsen was writing in 1988. Further, the temporal jurisdiction of the Commons Commissioners is finite. The caseload should only decrease, not increase, notwithstanding the statutory extension of jurisdiction, as with the Common Land (Rectification of Registers) Act 1989. Therefore, the massive backlog Gadsen speaks of is less of an issue today, and given this fact, it is likely that any residual jurisdiction in the courts will have disappeared, unless substantial delays remain or reoccur.

Further Appeals

              D.12               Appeals may be made by any person aggrieved by the decision. An aggrieved person may be a person other than those entitled to be heard at the hearing. Appeals are to the Chancery Division of the High Court, and lie only on a point of law.[23]

Judicial Review

              D.13               Gadsen has highlighted that “the actions and decisions of a Commissioner may be subject to review by the court.”[24] An application will lie where the Commons Commissioner has made no error of law, but where “all parties were under different misapprehensions, so that in the end justice is not achieved.”[25] An application will also lie were a Commissioner has exceeded his jurisdiction, or failed to exercise it.[26]