Contact: Liz Ellam, (01962 847371) [email protected]

1 Summary

1.1 An application was received on 25 September 2003 from Tudor Rose Farm Limited for the removal of CL277 Hurst Common, from the Register of Common Land. The recommendation is that the application be refused.

2 Introduction

2.1 On 11 November 1968 an application was made by Irene Boyt of Brookside, Coxstone Lane, Ringwood, to register grazing rights for six cows over certain land. The application was provisionally registered in the rights section of the Commons Register.

2.2 In consequence of this rights application, the land identified in the application was provisionally registered as common land, as CL277.

2.3 Both registrations were undisputed and became final on 1 August 1972. No owner was registered at this time. Common land is defined under the Commons Registration Act 1965 as land subject to rights of common or waste land of a manor not subject to rights of common. An application can be made under section 13 of the Commons Registration Act 1965 to amend the register where land ceases to be common land in accordance with the procedure set out in the Commons Registration (General) Regulations 1966.

2.4 In this case the application has been made in accordance with Regulation 27 which sets out the procedure for making the application and determination by the Commons Registration Authority of such an application.

3. Basis for the Application

3.1 On the application form it is stated that the land ceased to be common land
because any and all rights of common which were in the past exercised over
the land have been extinguished through abandonment.

4. Procedure

4.1 After some initial correspondence with the applicant's solicitors the
application was advertised and notice given in accordance with the
Regulations.

4.2 Two objections were received: one from an individual whose concerns related
more to the question of public access and the other from the Open Spaces
Society who made the following points:

· The right of common is attached to Brookside and is not affected by Mrs Boyt's death.

· Non user is not in itself proof of abandonment.

· The applicant's comments about Mrs Boyt's intentions are speculative.

· Even if the rights of common have been abandoned, the land may still be common land as being waste land of a manor not subject to rights of common.

4.3 The letters of objection were sent to the applicant for comment and no
comments were made in response.

5. Counsel's advice

5.1 Advice was then sought from Vivian Chapman of Counsel on the merits of the
application. This was received in July 2005 and he said that he did not
consider that there was, as yet, sufficient evidence to establish that the
registered rights of common had been abandoned. He also said that the
applicant had not satisfactorily proved that the land was not waste land of a
manor.

5.2 Counsel recommended certain courses of action, firstly, because it was not clear whether the present owners of Mrs Boyt's house, Brookside, had been properly given notice. Secondly, Counsel's written opinion was to be sent to the applicant and the two objectors inviting comments/further evidence and unless in the light of those responses there was satisfactory evidence to prove:

(a) that registered rights of common land had been abandoned; and

(b) that the Common was not waste land of a manor the application should be rejected.

5.3 Counsel's advice was sent to the applicant and objectors and a response
received from the applicant and the Open Spaces Society.

5.4 Further advice was then sought from Counsel and this is dated 6 November
2005.

5.5 In his advice he set out the issues. Has the registered right of common been
extinguished by abandonment; has the registered right of common been
extinguished under the single Payment Farm Payments Scheme; has the
registered right of common been extinguished pursuant to "Rule 257"; if the
registered rights have been extinguished, is the land still waste land of manor
not subject to rights of common; has notice of the application been duly served
on the person appearing from the register to be interested in the rights of
common under Regulation 27(5)(c).

5.6 His advice on those issues was that he did not think that there was sufficient
evidence to prove abandonment; he did not consider that the applicant had
proved that the registered rights of common had been extinguished under the
single Farm Payments Scheme; Rule 257 (of the Land Registration Rules 257)
was irrelevant to the present case; if rights of common had been extinguished,
the land would not remain common land as being waste land of manor not
subject to rights of common. He also advised that the name of the owner
should be obtained by carrying out a land registry search and notice of the
application should then be served on the owner. The application should not be
determined until 40 days after such notice is served.

5.7 With regard to the latter, the land upon which Brookside stood had been
roughly split in two, one half being owned by Mrs Boyt's grandson and the
other by Mr and Mrs Copping, of Brook Cottage (formerly Brookside). Mr
Boyt's grandson responded by saying he would elect to retain his rights whilst
the Coppings said they saw no reason to retain them.

6. Conclusion

6.1 Counsel concluded in his advice of 6 November 2005 that the applicant had failed to prove that the registered rights have been extinguished by abandonment or otherwise. It was necessary to serve notice on the owner of Brookside under reg. 27. Unless the owner replied to confirm that registered rights have been abandoned, he considered that, after the expiration of 40 days from service of notice on the owners of Brookside, the applicant should be notified that the registration authority considered that the application is not well founded. There is no specific requirement in the 1966 Regulations to give reasons, but he thought that, with a view to compliance with article 6 ECHR, it would be wise to give reasons. He recommended that the reasons for considering the application not to be well-founded should be stated to be "the reasons contained in counsel's Opinions dated 15 July and 6 November 2005, copies of which will be supplied on request". The applicant's Solicitors were sent a copy of this report, but did not comment.

7. Recommendation

That the application for the removal of common land from the register of common land in respect of CL.277 Hurst Common, Ringwood, be refused the rights of common not having been abandoned and for the reasons set out in counsel's Opinions dated 15 July and 6 November 2005.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes :

Published works.

Documents which disclose exempt or confidential information as defined in the Act.

TITLE Application form, accompanying documentation, procedural paperwork, Counsel's advices as referred to in report.