Commentary on Sections Registration of rights of common Section 11 Re-allocation of attached rights
78.Section 11 enables a right of common attached to a dominant tenement to be concentrated on part of the dominant tenement where another part is to be developed for non-agricultural use. For example, suppose a commoner owns land (the dominant tenement) to which a right to graze 100 sheep is attached. If one tenth of the land is developed for a new road, the effect of the pro rata rules of apportionment (see paragraph 6666 above) would be that a right to graze 10 sheep would attach to the owner of the road. The effect of a successful application under section 11 will be that the developed land will cease to have any rights attached to it, and the land which remains undeveloped will enjoy all of the rights which formerly attached to the whole of the dominant tenement.
79.The section provides that the owner of the dominant tenement to which rights are attached may apply to the commons registration authority to exclude part of the dominant tenement from the register. An application may be made where the relevant part is not used for agricultural purposes, or has planning permission for non-agricultural use. An application may also be made where the land is subject to a compulsory purchase order which has been confirmed, but before the land is vested in the acquiring authority.
80.It will be possible for the appropriate national authority to make regulations under subsection (5) which provide what is and is not to be regarded as use of the land for agricultural purposes. It is expected, for example, that regulations will provide that land maintained in Good Agricultural and Environmental Condition in accordance with the cross-compliance conditions of the Single Payment Scheme(23) is to be regarded as in agricultural use, regardless of whether the land is actually in productive use.
81.It is intended that applications should be made under this section while the commoner remains in control of the entire dominant tenement. So, for example, he may apply after the grant of planning permission for development of part of the dominant tenement, but before he disposes of that land to a developer. However, regulations made under section 24(2)(n) could enable an amendment to be made to the register in consequence of an application under the new section even where the application land has ceased to be owned by the applicant since the date of the application.