Comm on! Successful objection to a public common registration

On 23 January 2024 the Planning Inspectorate issued its decision not to approve the application to register waste land of a manor as common land in the register of common land. If the application had been approved, it would have hindered any future work our client wished to undertake as it would have required a commons licence (as well as establishing certain public rights over the application land). The land in question forms the coastal margin strip of land at the cliff edge. The cliff edge is already being eroded and a common land registration would have made it more difficult to obtain approval to carry out any future works required to reduce coastal erosion.  

The key issue before the Planning Inspector was whether the land was waste land of manorial origin at the date of the application on 22 December 2020. 

When purchasing land it is an important consideration to check whether there are any commons land registration applications pending in respect of the same; even if not to ask appropriate questions particularly if there the public are known to use the same. There are some options to a landowner to prevent a commons application being made such as ensuring any public access to the land is by agreement and this can be achieved by depositing a land owner statement. Important considerations to at least be aware of when acquiring such land. 

The key issue before the Planning Inspector was whether the land was waste land of manorial origin at the date of the application on 22 December 2020; if it was, the land may be capable of being registered as common land.

The application was made on the basis that the application land falls within the Manor of Killigarth. 

The Planning Inspector acknowledged that it is seldom possible to prove definitively that a particular parcel of land is of a manor. 

However it is sufficient to show, on the balance of probabilities, that the land lies in an area which is recognised to have been, or still be, manorial, and that there is no convincing evidence to the contrary.

The definition of waste land of a manor arising from the case of Attorney General v Hanmer [1858] 2 LJ Ch 837 is

“the open, uncultivated and unoccupied lands parcel of the manor other than the demesne lands of the manor”.

Demesne land is land within a manor owned and occupied by the lord of the manor for his own purposes. For land to be occupied it is considered there must be some exclusivity of physical use by a tenant or owner alone. 

The Inspector agreed with our submission that the historical evidence (comprising of a Parliamentary Survey of 1649/50 and a plan of the Manor of Killigarth circa 1860) supported the proposition that the application land was demesne land and therefore was not waste land of a manor. As a result, the application land did not fulfil the necessary criteria for registration and could not be approved.

We helped our client carry out the necessary historic and case law research, formulated evidence accordingly, and drafted legal submissions for the public inquiry while liaising with a barrister for specialist input. 

This is an excellent example of our wide range of planning practice succeeding in a contentious context in a niche area of planning law.