Exchange of land

Edward Cousins discusses the enactment of the Commons Act 2006, the introduction of comprehensive systems for the exchange of common land, and recent caselaw.

One of the many changes brought about by the enactment of the Commons Act 2006 (the 2006 Act) was the introduction for the first time of a comprehensive system for the exchange of common land. Previously there had been a limited ability to exchange land under the Enclosure Act 1845, Sections 147 and 147 and also the ability to exchange land under the Acquisition of Land Act 1981, Section 19, and Schedule 3. However, fundamental changes were made by virtue of Sections 16 and 17 of the 2006 Act.

Thus, where a landowner wishes to use or develop common land or a town or village green in a way which is inconsistent with the use of the land as common land or green, it may be necessary to release that land from the constraints imposed by its status. Now since the enactment of Section 16 of the 2006 Act, it is open to the landowner to exchange the status of the affected land with other land. The effect of this process is that the rights of common (in any) and recreational use can be transferred to the new land and the affected land is then released for potential new development. This process enables the affected land to be deregistered and exchanged for other land.

In order to enable this to occur and application has been made to the Secretary of State for an Order for the release land be deregistered. In most cases a precondition for deregistration of the release land will be the provision of alternative land in exchange, known as the “replacement land.” Where an application is granted, the Secretary of State must make an Order under Section 17 directing the registration authority for the area in which the land is situated to make appropriate amendments to the Commons Register.

There are detailed procedural regulations governing the procedures to be followed in relation to such applications. In such cases the Secretary of State may well make an Order that a Planning Inspector should undertake a hearing (usually an Inquiry) to determine the application and come to an appropriate conclusion in a decision where a recommendation is made to the Secretary of State.

There are specific criteria set out in Section 16(6) of the 2006 Act to which the Secretary of State must have regard when assessing an application. These are:

1. the interests of persons having rights in relation to or occupying the release land and in particular those persons exercising rights of common over it;
2. the interests of the neighbourhood;
3. the public interest; and
4. any other matter considered to be relevant.

These criteria raise somewhat complex considerations, and there have been a number of decisions and judgments made by Planning Inspectors and in the Courts by way of judicial review of such decisions. Three such cases are worthy of consideration as examples of the exercise of the principles governing Sections 16 and 17 of the 2006 Act.

The Tadworth Case [1]

This was an unusual case in that the proposed replacement land was far removed and different in character from the release land. As found by the Planning Inspector he stated that the proposed exchange was likely to affect different groups of people whether they be local inhabitants or members of the wider public in different ways. It therefore made it more difficult to determine where the balance of advantage or disadvantage lay. However, taking all those factors into account he came to the conclusion that the disadvantages of the deregistration of the release land which would be felt by some local inhabitants are outweighed by the advantages to others and the general public of both the deregistration of the release land and the registration of the replacement land. He therefore came to the conclusion that the application should be granted subject to a revision relating to fencing. This decision was upheld by Holgate J where he dismissed all three grounds of challenge.

Land at the Sands, Durham

This was an application made by Durham County Council in its capacity as the owner and occupier of both the release land and a replacement land. The release land was 0.17 ha, and the replacement land was 1.84 ha. The release land comprised a small parcel of land to the east of the substantially completely new County Council HQ building. This case was heard before a Planning Inspector as an online virtual event which lasted for 6 days. The decision being handed down on 11th October 2021.

The County Council wished to use this part of the common as a Members’ car park serving its HQ. The exchange land was 1.8 kilometres walking distance to the north of the release land on the other side of the River Wear and the railway line. The replacement land was some way away and enclosed by fencing, gated, and comprised undulating grassland. Although the replacement land was much larger than the release land, it was argued by the Open Spaces Society and others that it did not satisfy the Secretary of State’s requirement to have regard to the interests of the neighbourhood as it served a different neighbourhood. The Planning Inspector came to the conclusion that the exchange would have a limited or minimal adverse effect on the interests of some local inhabitants to the release land, but this would be offset by the benefit to others in the City of Durham by the inclusion of the replacement land. The Inspector found for the County Council.

However, the scheme for the construction of the Members’ car park next-door to the County Council building never materialised as there was a change in local government control by virtue of elections. Instead, the vacant HQ building of the County Council was sold to the University of Durham for its business school. Thus, despite the professed purposed expressed at the time of the hearing in Summer 2021, the original scheme that was manifested at the time of the hearing never materialised, much to the annoyance of the Open Spaces Society and other witnesses. Whether there was any attempt to judicially review this decision is not reported.

The Woodcock Hill Village Green case [2]

In this case Lane J dismissed an application for judicial review of the Secretary of State’s decision to allow the deregistration exchange of land forming part of Woodcock Hill Village Green. The Green itself comprised 10 ha of land on the south side of Borehamwood, Hertfordshire. The release land was registered in December 2008 on the basis of 20 years’ use as of right for lawful sports and pastimes by local inhabitants. This comprised 3.3 ha on the west side of the larger area of the Green. Laing Homes did not have an immediate purpose for the release land, but it aspired to develop the land for housing in due course.

The Planning Inspector granted the application made by Laing Homes on 24th May 2022 and that was judicially reviewed and heard on 15th February 2023. The judge came to the conclusion that the Planning Inspector considered the interests of the ‘neighbourhood’ correctly in the original Decision. Insofar as the second ground of challenge was concerned, relating to whether there had been improvement of the land by the local inhabitants by cutting back shrubs, creating ponds and installing benches, on the basis that the Inspector had come to the correct conclusion that little work had been carried out since permission was withdrawn to do so by Laing Homes.

The interesting aspect insofar as this case is concerned is that the term ‘neighbourhood’ has two different meanings in two different sections of the 2006 Act. The Judge found that the concept of the ‘neighbourhood’ had a broader and less well-defined meaning, in relation to an exchange of land as opposed to the meaning of the word as contained in Section 15 of the 2006 Act.

These three cases serve to demonstrate the complexity that can arise when embarking upon the process of deregistration of commons and greens.

Edward Cousins is a barrister at 9 St John Street.

He is the Editor of Gadsden and Cousins on Commons and Greens – Sweet and Maxwell (3^rd edition), Pease, Chitty and Cousins – Law of Markets and Fairs – Bloomsbury, and Cousins on Mortgages - Sweet and Maxwell.

Footnotes

[1] R (oao Tadworth & Walton Residents' Association) v Secretary of State for Environment Foods and Rural Affairs – Holgate J 4th March 2015.

[2] R (oao Patricia Strack on behalf of Woodcock Hill Village Green Committee) (Claimant) the Secretary of State for the Environment, Food and Rural Affairs, Laing Homes, and Hertsmere Borough Council [2023] EWHC 655 (Admin).