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Recording of CROW Act s15 Land

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					                     Recording of CROW Act s15 Land

1.   The CROW Act required the mapping of two types of land, which I will refer to
     as green and yellow land in reference to how these are depicted on the
     access map.

2.   Green land is land which is registered as common land under the 1965 Act.
     Such land may or may not have common rights registered over it. The
     mapping of green land appears to accurately reflect the registers.

3.   Yellow land is land that was mapped as open country with reference to
     descriptions of its physical characteristics and vegetation. Whilst there is
     clearly a degree of subjectivity to this, the mapping process was subject to
     appeal and determination and thus has to be regarded as correct by
     definition.

4.   I should emphasise that I am not in any way suggesting that the CROW
     mapping of the yellow and green land was not carried out correctly. My issue
     is the recording of the parts of this land that are not subject to access under
     the CROW Act because the public already had access under other legislation
     – this is the s15 land.

5.   S15 of the CROW Act refers to a number of ways in which land could already
     have public access. My concern refers to only one of these: s193 of the
     Rights of Property Act 1925 (as amended by the Local Government Act 1972)
     which confers a right of access to common land and manorial waste within
     pre-1974 boroughs and urban districts.

6.   It appears that the Countryside Agency sought to map the s15 land, although
     there was no legal requirement to do so. As it is not entirely clear what land is
     within the remit of s15 it sought a counsel’s opinion from George Lawrence
     QC and Ross Crail, both well-known experts in this field. Their opinion is
     helpfully available on the NE website.

7.   In simple terms their conclusion is that land that was in a pre-1974 borough or
     urban district will have public access under the 1925 Act and hence s15 land
     where it falls into one of the following categories:

     (a)    It was manorial waste without any common rights over it on 1st
            January 1926 irrespective of whether or not it was subsequently
            registered under the 1965 Act.

     (b)    It was common land on 1st January 1926 and has subsequently been
            registered under the 1965 Act, irrespective of whether any common
            rights have themselves been registered

     (c)    It was common land on 1st January 1926 and did not become
            registered under the 1965 Act because the common rights had been
            released or abandoned in the intervening period.

     However, land that was common land on 1st January 1926 and which thus
     had public access rights lost them if common rights still existed in 1970 but
     were extinguished by them not having been registered and the common itself
     had not been registered.
8.    On the basis of this opinion, it should be clear that both green and yellow land
      could potentially be s15 land. It should also be clear that sorting out which
      land is by no means simple.

9.    It is unlikely that green land would not be s15 land (although a slight
      possibility exists). The counsel’s opinion suggests (para 98) that the Agency
      would be justified in starting from a presumption that such land is s15 land,
      albeit leaving it open for the owner to produce evidence that it was not so
      subject. It may be that this has been the basis for the work so far with only
      registered common land (ie green land) in pre-1974 boroughs and urban
      districts being mapped as s15 land.

10.   However, it is also possible that yellow land could be s15 land as well. Land
      that was manorial waste not subject to common rights in 1926 and not
      registered as common land still has public access rights. If the same area
      was mapped as open country as part of the CROW mapping, then it will be
      s15 land.

11.   Similarly, land that was subject to common rights in 1926 but was not
      registered as common land because the rights had been released or
      abandoned would also be s15 land. It should be noted that the provisional
      registration of common rights under the 1965 Act was often the starting point
      for negotiations between owner and commoners leading to the owners buying
      out the rights which were thus not finally registered.

12.   It follows that in order to fully map the s15 land, it is also necessary to
      examine the status of the yellow land as well as the green land.

13.   The opinion suggests (para 93) that the Agency should adopt the following
      approach:

      “In the circumstances, it would be reasonable for the Agency to adopt a
      starting presumption that section 193 applies today to an area of apparent
      manorial waste lying wholly or partly within a pre-1974 borough or urban
      district whether registered under the 1965 Act or not, where the Agency has
      no evidence of its having been subject to rights of common in 1926. However,
      if the evidence indicates that an unregistered piece of such land was subject
      to rights of common in 1926, we think that it would be unsafe to presume their
      abandonment or release prior to 31 July 1970 in the absence of any evidence
      to that effect.”

      However, I am unclear as to whether this recommendation has been followed
      up as regards land that has not been registered as common.

14.   It would be helpful if Natural England could make it clear what the basis of the
      work to date has been. If the s15 mapping has been restricted to green land
      only then we should be told, and a process should be set out for identifying
      which parts of the yellow land are also s15 land. This may well be a process
      in which the LAFs can assist.

      John Sugden
      11/11/09

				
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