Last edited 11 Mar 2016

Common land

The term 'common land' is sometimes used to refer to land in public ownership or to which everyone has access. However, this is incorrect. Land must be legally registered as a common to have such status.

Another popular misconception is that any person has a right to enter common land. Although this is usually the case (there is now a public right of access to nearly all common land under the Countryside and Rights of Way Act 2000) it is not automatically so. The laws as applied to common land are often the same as for any other piece of private land, other than for certain people who possess commoners’ rights. This is a complex and very locally-variable part of the law, and local advice should be sought about the exact status of the land and its users before using what might be common land.

Commons pre-date parliament, or even the monarchy, and are a legacy from times when land was mainly 'wild' and owner-less. The manorial system appointed owners but the peasantry kept their customary rights. The Commons Act of 1285, also known as 'the statute of Westminster the second', confirmed landowners' right to 'approve' common land - that is, to fence off surplus common land beyond what was required to meet the commoners' needs and turn it to more profitable agricultural use. This was a frequent source of conflict between landowners and commoners until the practice of approvement was finally regulated under the Law of Commons Amendment Act of 1893 (now abolished). By the mid-nineteenth century many common rights had been eradicated by enclosures but some do survive. The Commons Registration Act of 1965 attempted to record all common lands, owners and rights. Unfortunately, many failed to be registered at that time and disputes have arisen as a result. Some commons have become de-registered because of loopholes in the Act.

The Commons Act 2006 made some changes to the registration and management of commons.

Common land is subject to 'rights of common', for example, the right to graze certain stock or the right to collect wood or turf. These rights belong to individuals (the 'commoners'), not to everyone. These individuals are often defined as living in certain properties, or in a certain area, e.g. a village or parish. Often the rights have died out, and a common has no commoners; or if the commoners exist they no longer exercise their rights. This does not stop the land from being a common.

All commons are registered. You can see the register of commons at the local county council, London borough, metropolitan district or other unitary authority office. National park authorities may also register commons. There are plenty of areas called commons which do not have common status - the name is not a good way to identify a common.

Under section 194 of the Law of Property Act 1925 the erection of any building or fence, or the construction of any work, which prevents or impedes access to land which was subject to rights of common on 1 January 1926, is unlawful unless the oprtation has the consent of the Secretary of State for Environment in England; or the Welsh Government (section 38 of the Commons Act 2006) in addition to any planning or other consent that is required. There are some exceptions to this.

There are 396,800 hectares of common land in England and 175,000 hectares in Wales contained in around 8675 separate commons. Common land represents 3% of England's area, and 12% of Wales.

Common land is an important nature conservation asset. Almost all the commons in England and Wales support semi-natural vegetation. Much of this is of high nature conservation value reflected in the proportion of commons designated as Sites of Special Scientific Interest and under EU Directives. Around 55% of common land in England was (as of 2006) designated as a Site of Special Scientific Interest (SSSI), and only 63% of this land was in favourable or recovering condition - much lower than the 73% average for all SSSI land in England.

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