Do you recognise this? "Father forgot to register our grazing rights in 1970, but it hasn’t mattered say much as we have still put our stock out on’t marsh, or common."
Maybe not, but since 2005 the RPA will not have given you any single farm payment money on your unregistered rights. Now there is the possibility that you will never be able to enter your unregistered rights on the Commons register. This appears unfair and the purpose of this article is to alert you to the current situation and propose ways to seek a resolution.
Under the Commons Registration Act 1965 all rights to graze registered commons had to be registered and quantified by number before the middle of 1970, or the rights were no longer exercisable and were “lost”. What the 1965 Act did not say was whether such lost rights could be re-established by exercising them for 20 years or more after 1970. This is what lawyers call prescription: use as of right without force or stealth or payment establishes a right – whether a right of way, or a right to a water pipe, or a right to graze on another person’s land.
Parliament brought in the Commons Act 2006 and one of the provisions allows for the correction of some mistakes to the registers, including the registration of prescriptive rights. The Act was brought into force in seven pilot registration authority areas in England. Cumbria is not part of the pilot but may start in 2013 – only 7 years after the Act was heralded in 2005/6!
Devon County Council, one of the pilot County Council Registration Authorities was advised by a senior barrister that they could not accept applications to register prescriptive rights on existing commons, for complicated technical reasons. Devon County council has also said “No” to applications to register prescriptive rights on an existing common.
As a result it now appears that if you can prove that your rights were never registered in 1970 due to a County Council mistake (not fathers’) then you may be able to correct the mistake and register your rights. Otherwise your rights may be lost despite you having exercised them for over 20 years with the express or tacit agreement of fellow commoners. They remain in law un-exerciseable, even though you exercise them.
But is this barrister right? Not necessarily. And even if he is, should Parliament not correct this error as it allows the correction of other errors?
To test the barrister’s advice will require a High Court case. However, it is unlikely that any single grazier will want the risk and cost of litigation, which is probably commercially unmerited, to register “lost” rights. But a group might be able to put up the funds to decide this issue in Court.
Moreover, if there are enough members of the group then another way would be to lobby Richard Benyon MP the Under Secretary in DEFRA responsible for Commons to correct the matter through law change. That will have a more certain outcome than litigation – after all Parliament made the law and has left it with a question mark – should not Parliament clear up the question mark?
The Federation of Cumbria Commoners is working with Tim Cartmell of Cartmell Shepherd Solicitors to look into this issue. If you exercise unregistered rights on your common or marsh then please give your name, address and phone number, the name of the common, the number of the claimed unregistered rights (in sheep or cattle) to Viv Lewis the secretary of the Federation of Cumbria Commoners (01931 713335 or viv@cumbriacommoners.org.uk). If you know of other graziers who exercise unregistered rights, please make them aware of the issue and ask them to get in touch.
We need the evidence from you so we can lobby Defra on this issue.
