Commentary on Sections Registration, deregistration and exchange of land Section 17 Deregistration and exchange: orders
97.Subsection (1) requires the appropriate national authority, if it grants an application under section 16, to make a ‘release order’ to direct the commons registration authority to remove the release land from the register. Subsection (2) requires, where appropriate, the registration of the replacement land and of any rights of common previously registered as exercisable over the release land, which are now exercisable over the replacement land.
98.Subsection (3) provides for a power to require a commons registration authority to take such other steps on receiving a release order as may be prescribed in regulations.
99.Subsections (4) and (5) provide for the extinguishment over the release land of rights of common and any rights exercisable by virtue of the land being a town or village green on its removal from the register. Such rights will generally transfer to the replacement land. Unlike an order under section 147 of the 1845 Act, an order under section 17 has no effect on the title (i.e. the ownership) of the release land or of any replacement land, nor on any easement or proprietary rights in the land (other than rights of common).
100.Subsection (6) provides that if any relevant provision applied to release land before the relevant date (defined in subsection (9) as the date on which the register is amended), it ceases to apply to the release land and applies instead to the replacement land. Subsection (8) lists the various enactments and measures which are relevant provisions for the purposes of subsection (6). For example, where the release land is subject to a right of access under section 193 of the Law of Property Act 1925, and limitations (similar to byelaws) have been imposed on the right under that section, both the right and the limitations will cease to apply to the release land, and will normally transfer to the replacement land.
101.There may however be specific circumstances where it would not make sense for recreational rights that apply over an existing green, or specific statutory provisions that apply on an existing common, automatically to transfer to any replacement land. For this reason, subsection (7) enables an order to make special provision disapplying or varying these rights or provisions in relation to the replacement land.
102.An order may also vary the effect of any local or personal Act in relation to the release land, the replacement land, or both. For example, where the release land is subject to a local Act regulating the management of the release land and adjoining common land, and the replacement land would not otherwise be subject to that Act, the order may provide that the replacement land is to be deemed to be subject to the Act.