Common land: High Court has power to determine composition of the register

The claimants owned properties close to a common. They were concerned about the extent of the common after discovering apparent anomalies in the commons register. In particular, the map that purported to show the boundaries of the common was a photocopy (not the original entry) of a map labelled October 1967.

The claimants argued that the photocopy map did not appear to be the map adopted for the register when the boundaries were determined in 1970, and a map from December 1967 had a better claim.

The claimants sought a declaration that the December 1967 map should be treated as the true map forming part of the commons register. They also sought clarification of the register if it was unclear whether the common extended onto their land, and a correction of the register if any boundary of the common was found to form part of their land.

The High Court held that:

• It had power to make declarations on the status of the October 1967 and December 1967 maps because it was restoring to the public record the true decision that the commons registration authority had made. The court had power to make a declaration as to the true constituents of the commons register that had been adopted by the commons registration authority.
• If the boundaries of the common were unclear from the register (once the register’s constituent maps were determined), the High Court did not have power to clarify or to correct the register. The court had limited powers to correct the commons register under section 14 of the Commons Registration Act 1965 and section 19 of the Commons Act 2006. Outside of these limited powers, clarifications and corrections were the responsibility of the commons registration authority.

Case: Rushmer and others v Central Bedfordshire Council [2023] EWHC 1341 (Ch) (23 June 2023) (Nicholas Thompsell, sitting as a Deputy Judge of the High Court).

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