Common Land
Common land is land that has rights of common over it. The main features of common land are that it is generally open, unfenced and remote - particularly in the upland areas of England and Wales. However, there are some lowland areas of common, particularly in the south-east of England, that are important for recreational uses.
The Countryside and Rights of Way Act 2000 to permit public access to open countryside will also include access over common land.
Natural England has published maps showing the land (including commons) to which the public have access.
Rights of Common can include:
- Grazing sheep or cattle (herbage)
- Taking peat or turf (turbary)
- Taking wood, gorse or furze (estover)
- Taking of fish (piscary)
- Eating of acorns or beechmast by pigs (pannage)
- Common in the soil (taking of sand, gravel, stones or minerals)
The people who are able to exercise the rights listed above are generally known as 'commoners'.
Common land and rights are a very ancient institution - even older than Parliament itself. They are part of the fabric of life in England and Wales and have their origins in the manorial system.
Statutory Protection of Common Land
Common Land is protected under several Acts of Parliament. Listed below are brief summaries of the most relevant Acts. You will need to undertake further research if you wish to find out more about specific Acts of Parliament.
The Law of Property Act 1925 (Section 194)
Under this Section, it is unlawful to construct buildings, erect fences, or carry out any other works which prevent access to common land unless the Secretary of State for the Environment Food and Rural Affairs has given permission. This applies to all commons and village greens which had rights of common over them on 1 January 1926. In deciding whether or not to give permission, the Secretary of State has to take into account the benefits to the neighbourhood and to any private interests in the land.
This section does not apply to works authorised by Acts of Parliament, the winning and working of minerals, or any telegraphic line as defined in the Telegraphic Act, 1878. A Section 194 application to the Secretary of State would need to be made in addition to any normal planning application to the local planning authority which might be necessary. Application forms are available from:
Department of the Environment, Food and Rural Affairs
Temple Quay House
2 The Square
Temple Quay
Bristol
BS1 6EB
Telephone: 0117 3728006
Where permission has not been obtained and works have been carried out, an application may be made to the County Court by either the owner of the land, the commoners, or a County or District Council for the removal of the works and restoration of the land to its original condition. A right of appeal against any decision of the Court exists.
The Law of Commons Amendment Act 1893 (Section 2)
Any inclosure or approvement of a common (removal of common rights and enclosure of the land) is not lawful unless the Secretary of State for the Environment, Food and Rural Affairs has granted permission. In deciding whether or not to give permission, the Secretary of State will consider the proposal in relation to the benefit to the neighbourhood, why it is necessary to use the common land, the number of common rights exercised over the land, and what sufficiency there is for exercise of rights (ie is the land currently capable of supporting more grazing rights than there are being exercised?).
National Trust Acts 1907 (Section 29) and 1971 (Section 23)
Section 29 of the 1907 Act requires the National Trust to keep all commons or commonable land open and unbuilt as open spaces for the recreation and enjoyment of the public. There are some exemptions for certain works or improvements to promote the enjoyment of such land. Section 23 requires the Secretary of State's permission to be given for any buildings or other works on National Trust owned commons or commonable land if public access to is likely to be prevented or impeded. Some works of improvement to permit better public enjoyment of such land are exempted.
Caravan Sites and Control of Development Act 1960 (Section 23)
This enables Councils to ban the siting of caravans for human occupation on common land. It does not apply to urban commons (those to which the public have legal access), commons subject to a scheme of management, or land where a site licence is in force.
Road Traffic Act 1988 (Section 34)
This makes it unlawful for a person to drive a motor vehicle on any common land (as well as some other types of land) without lawful authority (usually, this would be the permission of the landowner). It is not an offence to drive on land in emergency situations. Nor is it an offence under the Act to drive within fifteen yards of the road to park the vehicle on land. However, in the case of common land, byelaws preventing driving or parking may apply. Parking or driving of a vehicle on the land without the landowner's permission would also constitute trespass.
Vehicular access
Section 68 of the Countryside and Rights of Way Act 2000 permits the grant of statutory easements for vehicular access over land (including common land and village greens) where it is currently an offence to drive a vehicle, subject to certain qualifying criteria being met. Regulations now made by the Secretary of State include provisions for the grant of easements, compensation to be paid by the property owner to the landowner, dispute resolution procedures, etc.