On the Seventh day of Christmas – Glenn Rhodes

On the seventh day of Christmas….Today Glenn Rhodes from Irwin Mitchell’s Real Estate Disputes team examines some interesting issues relating to the Register of Common Land and what powers the High Court has when confronted with potential mistakes or inconsistencies in the Register

Rushmer v Central Bedfordshire Council: An Uncommon Dispute

This case deals with some interesting issues relating to the Register of Common Land and what powers the High Court has when confronted with potential mistakes or inconsistencies in the Register.

Background

The case concerned two neighbours who bordered Studham Common (“the Common”) in the village of Studham. After experiencing various issues related to the public use of the Common, such as parking complaints, they became concerned about the unclear relationship their properties had with the Common. After consulting the Register of Common Land held by the Defendant, they became aware of a series of anomalies and inconsistencies in the Register and discovered that the map of the Common contained in the Register was not consistent with the Defendant’s previous representations as to the extent of the Common.

The Claimants issued proceedings in the High Court and, after being asked by the court to amend their claim, asked for a series of declarations regarding the legal validity of the Register, the extent of Studham Common and the extent to which any of their properties were registered as common land. The claimants also asked for rectification of the Register if necessary.

The Defendant applied for the case to be struck out, primarily on the basis that the Court did not have jurisdiction to grant the declarations sought.

Decision

The Court first considered whether it had jurisdiction. It accepted that there was only narrow jurisdiction for the court to correct the register, or for the court to clarify the register by establishing the extent of any common land. This is because such powers are generally reserved by the Commons Registration Authority (the Defendant) with narrow routes of oversight by the courts in public law or certain statutory circumstances such as instances of fraud which did not apply in this case.

However, the court held that it did have jurisdiction to determine what documents constituted the true register. In this case there was some doubt as to which one of several maps presented to the Court was the original map used when the land was registered as common land. The Court held that it could establish which of the various maps presented, was the one that had statutory force in the Register.

The Court assessed two maps of dubious provenance and concluded that one map was the one originally adopted when the Common was registered in 1970.

The Court also briefly considered the definition of ‘common’ in Section 1 of the Commons Act 1899 as including land that is common land from time to time and not just land which was common land at the time of the 1899 Act.

Key takeaways

The Court was keen to emphasise that there is a presumption that the correct documents forming the Register were those being held by the Commons Registration Authority and so the Court considered that there should not be a rush of claims challenging the validity of common land registers across the country. However, the acknowledgement that where there have been obvious inconsistencies the court does have the power to step in and make a determination, will be of interest to registration authorities and those with an interest in common land alike.