My Barrister thought that there were several matters about this Consent Order that were curious. There is nothing odd about Mr Connell agreeing to surrender his rights of common. But it is curious that the court and parties felt in a position to determine by consent the state not only of the Rights Section of the register, but also what the Land Section should say. There is a strangeness in the Respondents agreeing to support Mr Whitfield in any application he might make to the Secretary of State under section 194 of the Law of Propert Act 1925 in respect of the pre-existing fences.
If the view had been reached that the 80 acres were not properly registrable as common land, why was any such application to the Secretary of State necessary?
The further significance of this for the purposes of this Inquiry (above and beyond the significance of the factual conclusions of the CCC, lies in the fact that it is to these very 80 acres of (disputed) common land that the claimed bridleway leads: i.e. 80 acres which were initially placed on the register, but then it appears removed.
Concerning the commons registration process we make the following points:
(i) the Inspector should conclude, in the light of the CCC’s findings, that there was a public resort to the area of common land accessed via the claimed bridleway, which provides very considerable support for the bridleway claim. It strengthens the case that the historic map evidence shows public rather than private tracks over the common; and it corroborates modern user evidence.
(ii) although this is not a matter that requires any decision by the Inspector), the Inspector ought to be aware that the Commons Act 2006, when it is brought into force in Hampshire, will provide a mechanism for area of land excluded from the register in ways such as that in which the 80 acres were excluded, to be returned to the register. The relevant provisions are contained in Schedule 2 to the 2006 Act, are as follows,
Waste land of a manor not registered as common land.
Next time: to be continued.
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