Common Land - "Lost Commons"

Conceiveably, common land has been in existence from the times of the Bronze Age (at least). However, it is only in the last 1000 years or so that the statute-mongers began to "codify" what had been customary law in England and Wales. From 1965 to the present a tidying up of the common land legislation has been going on - in a sense it has involved a tidying up of common land itself! In this process it has come about that the stakeholders were not as thorough as is "perfickly" possible! We have, it seems, lost some commons

The so-called "lost commons" are areas of land which have not been registered under:

• the original registration procedures of the Common Registration Act 1965; and,



• the relatively new procedures of the Common Land Act 2006.

For this post the issue is "Can the lost commons be found?" The answer to the question is multi-faceted - it depends!

It is probable that many of the lost commons are known and that as time passes more may be discovered. We know that the Commons Act 2006 has a provisions for procedures for registering "new" and "lost" commons. (For the latter see s22 and schedule 2 of the 2006 Act.) (Note: New commons are different from lost commons.) To what extent, then, will the procedures for registering the lost commons be available?

The Open Spaces Society produced guidance entitled "New opportunity to rescue lost commons". It was for the government's introduction (in October 2008) of piloting the implementation of the 2006 Act in several areas of the country, including registation of lost commons. It remains to be seen just how far the pilot's implementation on registrations was able to go.

Piloting of New Registrations etc: The government introduced the piloting in several are s in October 2008, eg in Kent. Thus, for instance, Kent County Council could:

• de-register any common which had been wrongly registered; and,


• register land which was found to be common land.

Because the piloting was slower than expected, the period for it was extended to September 2010 (see Regulation to this effect dated July 2009). As a consequence the nation-wide scheme has been delayed to after October 2011 (see Hansard 24EW 4 February 2010)

However, in our financially straitened times it seems likely that the cause of the lost commons is a lost cause for the present (at least).