Commentary on Sections Registration, deregistration and exchange of land Section 16 Deregistration and exchange: applications
93.Section 147 of the Inclosure Act 1845 provides for the ‘exchange’ of land. In recent years, the only use which has been made of this power has been to exchange common land or a town or village green for other land, so that the land given in exchange is substituted for the former common land or green. The Secretary of State (in Wales, the National Assembly) is required to confirm orders of exchange. In deciding whether to confirm the order, the Secretary of State must take account of the interests of the parties to the exchange. Sections 16 and 17 provide a replacement mechanism for the exchange of land which is registered under Part 1. Section 147 of the Inclosure Act 1845, and certain ancillary provisions in the Inclosure Acts 1847 and 1857, are repealed by Part 3 of Schedule 6.
94.Subsection (1) enables the owner of land registered as common land or a town or village green to apply to the appropriate national authority for the land or part of the land to be released from registration. If the ‘release land’ is more than 200 square metres in area, an application must be made at the same time to register ‘replacement land’ as common land or a green in its stead (subsections (2) and (3)). If the release land is smaller than 200 square metres, a proposal for replacement land may (but need not) be included (subsection (4)) — but the appropriate national authority must pay particular regard to the extent to which the omission of any proposal for replacement land is prejudicial to the interests specified in subsection (6)(a)–(c) (subsection (7)). Any replacement land may not be land already registered as common land or a green, and must be land to which Part 1 applies (see paragraph 4949). Its owner must join in the application, if not also the owner of the release land (subsection (5)).
95.Subsections (6) to (8) set out the matters that the appropriate national authority must consider in deciding whether or not to consent to an application.
96.Subsection (9) ensures that an application under this section may be made only with the consent of any relevant leaseholder of, and the proprietor of any relevant charge over, the release land and any replacement land.