The law surrounding land designated as common land is complex. The registration of land as common land has important implications for the Landowner including a restriction on their ability to develop and use the land. For further information about the significance of land being registered as common land, click here.
There is no single definition of common land. However in general terms, it refers to an area of land owned by an individual, over which another person is entitled to exercise 'rights of common'.
There are 5 main classes of 'rights of common':
- Pasture - the right to graze animals
- Piscary - the right to fish
- Turbary - the right to dig turves or peat
- Estovers - right to take wood for the sustenance of the commoners house or agriculture
- In soil - the right to take sand, gravel, stone and minerals
The general public may also have a right of access on foot for the purposes of open-air recreation under the Countryside Rights of Way Act 2000.
Rectification of the Common Land Register
There are various methods by which applications can be made to vary or amend the Common Land Register ('the Register'). This article explores the landowners' ability to apply to rectify the Register to remove land which has been wrongfully registered as Common Land under the Commons Registration Act 1965. Applications can also be made to 'de-register' correctly registered Common Land, but this usually requires replacement land to be provided and is a more complex process.
If you own an area of Common Land which is situated in one of the seven pilot authority areas, the deadline for such rectification applications is 31 December 2020. For the rest of England the deadline is 15 March 2027. Therefore, checks should be made well in advance of these dates to see whether your land meets the relevant criteria below.
The seven pilot authorities are the County Councils of:
- Devon (excluding Torbay and Plymouth)
- Kent (excluding Medway)
- Lancashire (excluding Blackpool)
- The County of Herefordshire District Council
- Blackburn with Darwen Borough Council
Under the Commons Act 2006 (Schedule 2 paragraphs 6 or 7), a Commons Registration Authority must remove land from its register of Common Land if:
1. The land (with or without buildings present), was provisionally registered as Common Land under the Commons Act 1965 by a cut-off date in 1970.
2. Where there were no buildings present, the provisional registration of the land as Common Land was not referred to a Commons Commissioner to decide.
3. The provisional registration became final.
4. Where a building was present on the date of the provisional registration, a building has remained on the land at all times since then (it need not be the original building).
5. Where there were no buildings present, immediately before its provisional registration the land was not any of the following:
(i) Land subject to rights of common
(ii) Waste land of a manor
(iii) A town or village green within the meaning of the 1965 Act as originally enacted; or
(iv) Land of a description specified in section 11 of the Inclosure Act 1845
To establish whether the above criteria are satisfied over an area of Common Land requires some investigatory work to be carried out. If you would like to establish whether your land may have been wrongfully registered as Common Land, or would like any other assistance related to Common Land, our experienced Planning Team is able to provide advice on all aspects of registration, rectification, de-registration and protection.