There are approximately 3,701km2 of common land in England and Wales that remain a significant farming, leisure, and increasingly, an environmental resource. The law relating to it is rooted in the centuries-old manorial system of law; it can be difficult to navigate and few people deal with it on a regular basis.
Common land and the nature of common rights are an often-overlooked and misunderstood area of law. For many it is an arcane area of little relevance in a modern context, for others it represents necessary searches during the conveyancing process but no more.
The first point to make in relation to common land is that nothing is straightforward, and everything is more difficult and time-consuming than might be anticipated. Disputes that arise now may relate to the exercise of rights or the relationship between commoners or between the commoners and the lord of the manor. Their roots are often in disputes that took place many years ago but which are passed from generation to generation.
The principal piece of legislation that most people will recognise in relation to commons is the Commons Registration Act 1965. This required the registration of land subject to rights of common and common rights; registration was conclusive evidence that the rights existed. If rights were not registered under the 1965 act, those rights ceased to exist.
The most recent legislation is the Commons Act 2006, intended to modernise and simplify the registration and management of commons. The 2006 Act, however, has only been implemented in some pilot areas in England and only partially implemented in other areas – it is debatable whether it has actually simplified the position.
The different commons rights are broadly defined as the following.
right to graze animals.
right to allow pigs to eat acorns or beech mast.
right to take small branches for fuel or fencing.
right to dig peat as fuel.
right to fish.
The rights benefit only to the holding from which the rights arise – for example, a commoner could take peat to burn as fuel in the farmhouse – but cannot set up shop selling peat for his neighbours to burn. The precise nature of those rights can vary from common to common – while the rights had to be registered, their exact use and extent will have arisen by custom and so even now the position can be opaque. One can ascertain from the register what rights exist but not always their specific nature.
In general terms this is seldom an issue as grazing is the most important right. In many regions, grazing of commons has declined over the years, both because it is no longer commercially viable and due to increased pressure on commons from traffic and other leisure uses. However, in some areas commons remain an important part of the agricultural landscape.
The Commons Act 2006 replaced the 1965 Act. While some provisions of the 2006 Act have been introduced everywhere, others are in force in some areas only. Provisions were introduced by virtue of different regulations at different times in England and Wales. Some provisions were introduced in pilot areas only – currently nine English counties. The result is that the position remains as complex and confusing as it was before.
Some commons have well-organised and effective Commons Associations that manage the common, but many do not. A Commons Council has to consider public interest and that specifically includes nature conservation, landscape conservation and public access. The environmental importance of commons means that there is a wider interest in the management and use of the land and Commons Councils may be a way for that to be achieved.
Section 38 is one of the most important features of the 2006 Act. This replaces the more well-known Law of Property Act 1925 section 194. These provisions relate to the need for consent for works on common land. DEFRA and the Welsh government publishes detailed guidance about the nature of works that will require consent as well as the consent process.
Section 38, in essence, requires consent where works are to be carried out on common land that falls within the definition of restricted works. Restricted works mean work that prevents or impedes access, or works for the resurfacing of land – unless a repair of an existing track. In particular that includes the erection of fencing, construction of buildings, and digging trenches, ditches and embankments.
One of the key differences between section 194 and section 38 relates to enforcement. Under section 194, the ability to enforce under that provision was limited; action could be taken by the local authority – commoners and the owner of the common may also have rights of action. Under section 41 of the 2006 Act, any person can apply to court. In some respects that is good as it removes a barrier to enforcement if the local authority does not want to take action. On the other hand, it is difficult to insist on the authority taking action when they can simply say that it is open to others to do so should they wish.
Even if consent is given under section 8 that does not make lawful work that would otherwise be unlawful. In other words, even with a section 38 consent, the commoners or the owner of the common might be able to argue that there is an interference with their rights.
One of the most-anticipated elements of the 2006 Act related to the ability to make an application to correct the register. When the act was being debated there was concern that it might open the floodgates to applications either to add or take away common land which is seen as an important environmental and leisure resource – albeit its farming value is often overlooked by the authorities – and the authorities did not want to see it diminished. As a result, circumstances in which it is possible to try and correct the register are limited. There are now detailed regulations on the extent to which it is possible to make applications to remove land from the register, alter or vary rights and deal with mistakes in the register.
Notably there are also provisions to deal with exchange land applications, i.e. land is removed from common – for example to allow wind turbines to be built – and suitable land is substituted. The application is made either to DEFRA or to the Welsh government. In theory if the land to be removed is less than 200m2 no exchange land is required but in most cases, unless exceptional reasons can be shown, it will still be required and most significant schemes would of course be much larger than 200m2.
Finally, it is often assumed that there is virtually nothing the landowner can do on common land because anything will inevitably interfere with the rights of common. This is incorrect. In theory a landowner can do anything on common land provided, of course, it does not interfere with the rights. For example, the landowner can graze stock provided the grazing capacity of the common is sufficient for the registered rights as well as the landowner’s stock. When grazing was the primary focus of commons the landowner’s use seldom caused argument. However, farming incomes are declining, less stock is being turned out and there are more opportunities for landowners to try and use marginal land to gain access to conservation schemes or renewables projects as a source of income. I suspect that this will be an area of the law relating to commons that will come under scrutiny in the next few years.
"A Commons Council has to consider public interest and that specifically includes nature conservation, landscape conservation and public access"
Rory Hutchings is director and head of rural practice at JCP Solicitors firstname.lastname@example.org
Related competencies include: Agriculture, Management of the natural environment and landscape, Sustainability