CHAPTER ONE – WHAT IS COMMON LAND?
This chapter describes what Common Land is.
A Right of Common
Typically, common land is understood to refer to land over which rights of common are exercised. As was helpfully set out by Winn LJ in Beckett (Alfred F) Ltd v Lyons [1967] Ch. 449 at [482]:
- It is a legal right of one or more people;
- To take or use some part of the natural produce of, or wild animals upon,
- The land of another.
This is known as Rights of common. They are a type of incorporeal hereditament and nature, profits à pendre.
There can be a profit in common in a range of circumstances:
- where the owner is entirely excluded from the benefit by the holder/s;
- where the holder of the profit share in the benefit of the produce with the owner of the soil.
While there are exceptions, if one unlawfully takes or uses said produce, this belongs to the owner of the soil from which it came.
Common Law Definition v Statute Definition
| Common Law | Statute |
| Land subject to rights of common. The common land to which the common right attaches is the dominant tenement | Definition stems from the 1965 Act, s22(1) and the Inclosure Act 1845, s.11. S.22(1) states:
“(a) land subject to rights of common (as defined in the Act) whether those rights are exercisable at all times or only during limited periods; (b) waste land of a manor not subject to rights of common”, |
| A right in common is known as profits à pendre. The grantee takes some part of the land, the products of the land or animal thereon, that belong to another person – see Beckett (Alfred F) v Lyons [1967] Ch. 449 at 482, per Winn LJ | Reference to the 1965 definition features in other statutes such as the Countryside Act 1968 (open air recreation) and Criminal Justice and Public Order Act 1994 (trespass on common land) |
| Some part of the benefit in the subject matter (be it hay, grass, animals etc) must remain vested in the owner of the soil – commonality between owner and rights holders. | The 1965 Act definition did not include a town or village green or any land which forms part of a highway. A “town or village green” was separately defined.
Oddly, s.22 included “waste land of manor” even though this was subject to no third-party rights. |
| Stops when:
i. extinguished; ii. there is unity of possession; iii. such rights are released to the owner. |
Unhelpfully, s.61(1) of the Commons Act 2006 has no definition at all save that the glossary of terms contained in the Explanatory Notes states that there is no single definition of “common land”, “common”, or “common rights” due to its complexity. In the case of a sole right in pasture granted to multiple persons and shared between them, i.e stinted pastures, there is no community of use and differs to rights of common. Yet, the 2006 Act seems to suggest this is within the s.61(1) attempted definition. |
| Must be held for an interest equivalent to a fee simple | |
| Common fields: originate from the manorial system. Occupiers take crops from parts of the field held in severalty, and graze in common when the land is not growing crops. It becomes
commonable after the severalty crop is removed. |
|
| Stinted Pastures: sole or several right. No community of use between owner of the soil and the rights holder. The owner has no share. |
Different to Easements
| Easement | Rights in Common |
| No right to participate in the produce of land of another (often included as a restrictive covenant in leases) | Taking or using some part of the natural produce, or wild animals, upon land of another |
| Not held in gross – need a dominant tenement | Can be held in gross i.e it does not need to attach to a dominant corporeal hereditament. Be aware of the exceptions in Schedule1 1, but it is now prohibited by s.9 of Schedule 1 of the Commons Act 2006 to sever rights in common which are attached |
| Not wholly separate to rights in common | Can include easements that are reasonably necessary for the reasonable enjoyment of the principal or primary right – see Buckley LJ in White v Taylor (No.3) [1969] 1 Ch. 160 at [19]. |
Pre 2006, there was the Commons Act 1965. Some rights of common are registered thereunder that have remained unchallenged but which would not satisfy the test in the Commons Act 2006 and subsequent case law to be strictly described as “rights of common.”
These days, when mention is made of a “common”, this usually means the land itself over which rights of common are exercised.
How do I know from looking at land whether it is a common?
How it looks topologically and geographically is not key. That it is open or enclosed is also not indicative of whether the land is a common or not, despite most commons being unenclosed.
One must focus on the use of the land, which in part depends on location but also on its historic use/s in the past. For instance, is it open grazing land that is in part enclosed that has been made available to farmers, collectively? Is there an unused village green or seemingly random plot of land that at one time was part of manor land which is now being used as a recreation ground for sports such as cricket, pétanque or rugby? Is the land rich in wildlife or steeped in archaeological remains?
Most common land exists as a result of the inclosure movement in the 18th century AD and extinguishment of the manorial system, but not all land used in common with the manorial system is subject to rights of common today.
Commons Act 1965
The 1965 Act was intended to be a definitive statutory registration scheme.
It was designed to provide for public access and management schemes, whereby any ownerless town or village greens would be vested in local authorities, and there be an implied right of access to, and protection for, all greens.
The 1965 Act was enacted to allow for registration of land, rights and ownership up to 2 January 1970.
After that date unregistered land was no longer deemed to be common land and rights of common thereto became unexercisable unless registered.
Objections to any disputed provisional registrations was permitted until July 1972.
The 1965 Act was riddled with difficulties:
- there were more objections than anticipated;
- land was registered that should not have been and land was not registered when it should have been;
- the extent of the land and associated rights had been overstated or understated in some instances;
- there was no mechanism to enable land registered to be removed once made final.
These are just some of the reasons why the Commons Act 2006 was introduced.
What was registrable under the 1965 Act?
Those which were registrable under the 1965 Act included:
- Wastes: meaning waste land of a manor. Typically consists of open land with rights of common exercisable by the owners or occupiers of enclosed land. The owner of the soil is entitled to any residue of a product remaining after the rights granted away have been realised. The position under the 2006 Act is that one cannot create a new right other than by express grant providing said right is attached to land, and the land can sustain said right with existing rights. New rights of common cannot be created over existing town or village greens;
- Stinted Pastures: the owner of the soil has no residual interest in the grazing and the land the land is subject to a sole profit. The whole of the grazing has been granted away as a separate incorporeal hereditament, to one or more people, and then divided into equal shares (stints).
- Common Fields: crops are harvested by tenants of the manor (historically) on strips and the land, after harvest, is then opened for communal grazing in “open” season. This is “open fields”. Few remain today;
- Regulated Pastures: land is used in common by a number of people with a fixed right to graze a certain number of animals. The graziers own the land in undivided shares, but the grazing is directly related to a share in the land.
Not registrable:
- Royal Forests;
- Land exempted by order of a Minister – s.11(1) of the 1965 Act contains a list of exemptions.
The Commons Act 2006, s.22, provides provisions for amendments to be made to the register for registration of common land under the 2006 Act that was unregistered post 1965 Act.