County Councils in England, District Councils in England for an area without a County Council, London Borough Councils and County or County Borough Councils in Wales are “commons registration authorities”.  The commons registration authority in relation to any land is the authority in whose area the land is situated.  Where any land falls within the area of two or more commons registration authorities, the authorities may by agreement provide for one of them to be the commons registration authority in relation to the whole of the land.

The Commons Registration Act 1965 (“the 1965 Act”) created a legal record of common land, town and village greens and rights over the land by requiring that all were registered by a cut-off point, failing which they lost that status. The compilation of the original registers resulted in many mistakes and anomalies, eg land was recorded as common land despite having never been part of the common. Many of these mistakes were not noticed until after the registers became conclusive on 31 July 1970 but there were insufficient powers to correct them. The 1965 Act also failed to require that registers be kept updated when events took place that affected the information in the registers. Consequently the registers currently maintained under the 1965 Act are not an accurate record of common land, town or village greens or the rights over them.

Part 1 of the Commons Act 2006 (“the 2006 Act”) 2006 Act provided for applications to amend the information in the registers to reflect contemporary events, anomalies and mistakes, and unregistered events.  It also provided that changes to the information in the registers are only considered lawful when recorded in the register.

The 2006 Act received Royal Assent on 19 July 2006.  Part 1 of the Act provides for the maintenance of, and amendment of the information in, the registers of common land and of town and village greens which were established under the 1965 Act. Section 1 provides that commons registration authorities shall continue to keep registers of common land and of town and village greens (ie those originally prepared under the 1965 Act). Sections 2 to 5 provide for the purpose of the registers, the definition of commons registration authorities and the land to which Part 1 applies, which is most of England and Wales.  Sections 6 to 17 specify the types of applications to amend the registers to reflect contemporary events which affect the information contained in the registers.  Section 18 provides for the conclusiveness of the registers, eg land (i.e. common land) is deemed to be subject to rights of common upon the registration of the right. Section 19 allows for the correction of the registers in prescribed circumstances, eg where the commons registration authority made a mistake when it made an entry in the register.   Section 20 requires that the registers must be made available for inspection by any person. Section 21 provides for official copies of the registers. Section 22 gives effect to Schedule 2.  This allows for the registration of common land and town and village greens that were not registered, and for the removal of land that was wrongly registered as common land or town or village green, under the 1965 Act. Section 23 gives effect to Schedule 3.  This provides for a transitional period during which historic events which were not recorded in the registers can now be recorded.

Section 24(1) of the 2006 Act provides the Secretary of State (“the SoS”) with powers to make Regulations that provide for the making and determination of applications to amend the registers under Part 1.  Subsection (2) lists the matters that the Regulations may in particular provide for, which includes: the form of an application, the information to be supplied with one, notice requirements, the making of objections and the persons who must be consulted, the holding of inquiries, the evidence to be taken into account. Subsection (2A) provides the SoS with powers to make Regulations for the fees payable for applications, including where the person who determines the application is different from the person to whom it was made. Subsection (3) provides that the Regulations can specify the persons entitled to make certain types of application. Subsection (6) provides the SoS with powers to make Regulations concerning the making and determination of proposals made by commons registration authorities (ie applications the authority makes to itself), and subsection (7) lists the matters that such Regulations may in particular include. Subsection (8) provides that the appropriate national authority (in England, the SoS) may make regulations to appoint persons to discharge functions of a commons registration authority in relation to applications or proposals.

The Commons Registration (England) Regulations 2008 (“the 2008 Regulations”) implemented Part 1 in the seven “pioneer” local authority areas in October 2008. Those authorities comprise: Blackburn with Darwen Borough Council, Cornwall Council, Devon County Council, County of Herefordshire District Council, Hertfordshire County Council, Kent County Council and Lancashire County Council.

The Commons Registration (England) Regulations 2014, SI 2014/3038 (“the 2014 Regulations”) provide for the maintenance of the registers of common land and town and village greens, including the procedure for applications to amend them under Part 1 of the 2006 Act. The registers can be amended to add new information or amend or remove existing information. Amendments can be made to reflect contemporary changes (Sections 6 to 15 of the 2006 Act), mistakes and anomalies (Section 19 and Schedule 2 to the 2006 Act) and historic unregistered events (Schedule 3 to the 2006 Act).

The 2014 Regulations apply in full to the areas of Cumbria and North Yorkshire (“the 2014 registration authorities”) and the pioneer areas (“the original registration authorities”, which were previously subject to the Commons Registration (England) Regulations 2008, which the 2014 Regulations now replace). Cumbria and North Yorkshire are required to review their registers to identify anomalies and to process fifteen types of applications. The 2014 Regulations partially apply elsewhere in England to allow five types of applications to correct mistakes in the registers. The five types of applications are those under: Section 19(2)(a) (correction of mistakes made by an authority when it made an entry in the register), and paragraphs 6, 7, 8 and 9 of Schedule 2, which allow for the removal of certain types of land that were wrongly registered as common land or town or village green.

The 2014 Regulations require applications to be submitted to commons registration authorities.  They have the power to charge fees, set by themselves in relation to most types of applications (certain types are specified as liable to no fee, due to a public interest). Applications must be referred to the Planning Inspectorate for determination where the authority has an interest in the outcome of an application. Applications to correct a mistake, or add land to, or remove land from, the registers must also be referred provided objections have been received from persons with a legal interest in the land.

In Isle of Wight Council and Others v HMRC [2014] UKUT 446 (TCC) the Upper Tribunal held that the First-tier Tribunal had been entitled to find that local authorities were not entitled to recover VAT included in supplies of off-street carparking pursuant to the Road Traffic Regulation Act 1984, Sections 32, 35 and 122.  Non- taxation would lead to the risk of significant distortions of competition in the off-street car parking market and the provision of outsourcing.  Local authorities were not entitled to be treated as a non-taxable person.

Proudman J accepted (para 54) that “the RTRA as a whole is not a revenue-raising measure”; that, although the cases of Cran, Djanogly and Attfield relate to on-street parking, they were applicable in that respect to off-street parking; that it is legitimate for a local authority to structure its car parking prices so as to discourage parking in some places and encourage it in others; that it is likewise legitimate to use surplus revenue generated from some car parks to make up a  shortfall in revenue from car parks which, whether for policy reasons or otherwise, are run at a loss, or where parking is free of charge; and that there is no requirement that income and expenditure be balanced on a car park by car park basis.

Proudman J said that it must follow, if the RTRA is not a fiscal measure, that “overall, and perhaps taking one year with another”, the cost to the local authority of meeting its statutory obligation of providing sufficient off-street parking and the revenue generated from the activity must be “broadly equal”.  The “deliberate making” of a profit would take the activity into the realm of “trading”.

The normal course with highway developments is that estate roads when constructed become public highways maintainable at the public expense.  This result is usually achieved by the mechanism of an agreement made between the developer and the local highway authority under s38 Highways Act 1980.  Such an agreement has two aspects: first, the roads are dedicated and adopted as public highways; and, second, they become highways maintainable at the public expense.

In R (Redrow Homes Ltd) v Knowsley Metropolitan Borough Council [2014] EWCA Civ 1433 both Redrow and the Council as the highway authority wished in principle that this should occur.  A part of the roads will be street lighting. The Council said that it would not enter into an agreement under s38 unless it contained a provision that Redrow pays at the date of the agreement £39,000, which is a commuted sum representing the estimated capital sum to cover the cost of future maintenance of the street lights. The Council said that such a provision in a s38 agreement is lawful by reason of the word “maintenance” in s38(6) and that maintenance refers to and includes future maintenance of the road following its adoption. Redrow said that no such provision may lawfully be included in a s38 agreement.

The case related only to street lighting and a relatively small sum. However, the issue of statutory interpretation is of wide importance.

The Court of Appeal found in favour of the Council.  Lord Dyson MR, with whom Gloster and King LJJ agreed, said:-

“ … The starting point is that s38(6) is expressed in wide and unqualified terms. On its face, it permits an agreement between a developer and a highway authority containing “such provisions as to the dedication as a highway of any road or way…, the bearing of the expenses of the construction, maintenance or improvement of any highway, road…to which the agreement relates and other relevant matters as the authority making the agreement think fit”. It could hardly be wider in its scope. In particular, there is nothing in the language of the subsection which draws a distinction between what is permitted in respect of the period before and what is permitted in respect of the period after the road or way becomes a highway maintainable at the public expense….”

“19.       … First, as a matter of ordinary language the phrase “maintainable at the public expense” connotes that the highway authority will be liable as a matter of public law to maintain the highway. But it does not indicate how the authority is required to discharge that liability. The authority may carry out the maintenance itself or make an agreement for a developer to carry out the work. It may choose to pay for the maintenance of the highway out of public funds or obtain funds for doing so from the developer or a combination of the two. Whichever course is adopted, the highway authority remains liable and the highway continues to be maintainable at the public expense. Thus, for example, if a developer agrees to maintain a dedicated highway and defaults on his obligation, the highway authority remains liable. That is because the highway is maintainable at the public expense. …

20.        Secondly, quite apart from the natural meaning of s38(6), … it is clear from other provisions of the 1980 Act that Parliament did not intend by the use of the phrase “maintainable at the public expense” in the subsection to exclude the possibility of an act of privately maintaining or of privately contributing to the cost of maintaining a highway maintainable at the public expense. It can be seen from provisions such as ss 44 and 278 that an act of private maintenance or an act of the provision of expenses is not inconsistent with the concept of a highway being maintainable at the public expense.

21.        S44 provides that a person who is liable “under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway” may enter into an agreement with the highway authority “for the maintenance by him of any highway maintainable at the public expense by the highway authority”. Such a person may also enter into a s38(1) agreement. Parliament clearly envisaged in such circumstances that the highway remains maintainable at the public expense notwithstanding continuing maintenance obligations on the part of the counterparty to the agreement. S278 provides that a highway authority may enter into an agreement with any person for the execution by the authority of any works which the authority is or may be authorised to execute on terms that that person pays for the whole or part of the cost of the works. S278(3) provides that the agreement may also “provide for the making to the highway authority of payments in respect of the maintenance of the works to which the agreement relates”. There can be no doubt that an agreement made pursuant to s278 can provide for a payment in respect of maintenance of a highway, including a highway maintainable at the public expense.

22.        Thirdly, … s38(1) when read together with s53 shows that Parliament cannot have intended to preclude the possibility of an agreement for maintenance by a developer after the dedication of a highway. …”