Common Land (Wales) No 3 New Maps of Common Land and Open Land

New maps of common land and open land are being prepared by the Countryside Council of Wales. It is intended that they will be published in 2014. The review is, it seems, a statutory review of the original maps which were created about 10 years' ago.  

It is a pity that the review is not linked to the search for "lost commons" (See post of 6 July 2011). However, some examples of the reasons for the review (apart from being a statutory requirement) are given in the link at the foot of this post.

Overseas readers might note that the extensive areas of registered common land in Wales (and England) are supplemented by large areas of "open land" - classified as such under statute - see   http://www.legislation.gov.uk/ukpga/2000/37/notes/contents  .

http://www.farmersguardian.com/home/latest-news/mapping-review-to-open-in-wales/44180.article

Village Greens and Town Greens No 1 - Consultation

The government's consultation on procedures and practices of "creating" more prospective village and town greens closed in the middle of last month (17 October 2011).

From an answer (8 November, 2011) to a parliamentary question, I understand that the responses to the consultation are being analysed  by officials and that the government will announce on the subject  in early 2012.

Possibly reforms arising from the consultation may well result in a practical demise of what is, in essence, the right to claim a statutory "prescriptive right" or statutory "easement or wayleave" over land held by residents of a locality or a nighbourhood in a locality.

Generally, for local folk "going for a green" is a not-inexpensive dedication and commitment to spend time and money defending doing what they have been doing "as of right" for at least half a generation or so (20 years). What they have been doing must be lawful sports and pastimes. [Much of this is explained in detail in  my Common Lands Handbook published by the IRRV.]

But that is only one side of the issue. The other side of the issue are the concerns of the landowners who may be holding long-term intentions to use the land in some way - perhaps as a public sector hospital or a private sector leisure facility. Another stakeholder may be the local authority intent on seeing the land used for some wider constituency purpose.

My guess is that our leaders will have a fulcrum of a task to get a wise and balanced judgement on this one!

Common Land - India's Common Land

Having spent some time researching and writing on common land in England and Wales (E&W), I was interested to learn of the further formation of national policies to protect common land in India.  A first read must be the National Policy for Common Resource Lands (Common Lands) 2002. As far as I know this cover the whole of India,

However, I get the impression that the draft Rajasthan Common Land Policy 2010 will be more detailed in its purview of the scene in that State - so that will be another new tour for my eyes.

As an example of the detail - the article below mentions, it seems, the building of walls to protect from encroachment common land in Rajasthan. Although further details need to be sought it appears to contrast with the situation in E&W where such walls would ususally be prohibited.


http://fes.org.in/includeAll.php?pId=Mi01NC0xn

Common Land - Creation - Gifts and Dedications...?

It is quite possible for developers of land for houses or offices etc to dedicate to the public snippets of land on the edges of their completed developments. It was invariably (in my experience) land which was outside the physical boundary marker (wall or fence) but still within the legal boundary and hence ownership of the developer. It was often paved etc and looked like a public footway.

If the dedication was accepted by the highway authority it was henceforth treated as publicly owned land and maintained within the highway. (An area of such land which is not dedicated is often marked by a brass strip inset into the pavement. A line of brass studs could be used as an alternative but I have not come upon them.)

But I stray away from common land into what is usually an urban phenomenon. The point of this post is "Would it not be great if more individuals and organisations could be persuaded to give or dedicate land as common land?"

This post was prompted by a Written Answer (Hansard 10 Feb 2011 column 375W) which was in fact about voluntary dedications by registration of land as village greens by local councils. It made me think about "lost commons" and the creation of new commons!

Common Land - Royal Forests 2 - Demise

I stray into Royal Forests although they have little to do with the bulk of common land in England and Wales, ie named Royal Forests, namely: Epping Forest, Forest of Dean and New Forest, do not come within the Commons Act 2006 (see s 5). They are exempt from registration and are governed by their own statutes. The reason for starying is that their history, that is as much as I have found out about them, fascinates me.

It seems they were common in Europe in Anglo Saxon times and some were created by the Anglo Saxon dynasty but it was the Normans who went crazy for them. Large swathes (say 35 in William's time) of rual England were declared "Royal Forest". Protection of trees and vegetation as well as the deer were the reasons for the formidible force of sanctions to misceants who transgressed the "Forest Law".

At their peak there were well over 200 but after two hundred years the harshness of Forest Law caused constraints to be imposed on the sovereign. Important early statutes resulting in their gradual road to demise were:

1. Magna Carta (1215) and its companion Act, Charter of the Forest (1217); and,


2. Disafforestation, Sale and Improvement of Royal Forests Act 1653.

However, it was the Wild Creatures and Forest Laws Act 1971 which finally put paid to almost all Royal priveleges in this domain. The Crown has retained rights in swans and royal fish (see s1(1)(a)). However, Forest Law was finally abrogated but the appointment of Verderers was retained (see s(1)(2)).

In modern times the role of Verderers - say "governors and stewards" of the New Forest - may be seen monthly in action in their Verderers' Court within the New Forest. A while ago I attended (as a tourist 'observer') when a couple of very interesting topis arose. One was a proposed improvement of an in-forest supermarket - I suppose it was an example of the kind of thing which might arise under the proposals of the Localism Bill (2011).

Common Land - Powers of Ownership 2

The general overview of the common land owner's powers, etc were briefly dealt with in No1. Here we look at more particular or specific powers which an individual as an owner of a common holds.

The powers include the following:

• sale of the land or grant of a lease in it or part of it;


• make a gift or bequest of the land;


• carry out relatively minor works to the land, subject to statutory controls; and,


• develop, the land subject to statutory controls;


• power to manage the land.

However, the right to carry out works or develop common land is severely restricted and in most cases would not be possible. The restrictions arise under the Commons Act 2006 (Law of Property Act 1925 in Wales) and the Planning legislation.

In addition, the common land owner is required to consider and respect the rights of third parties, including:

• any commoner's rights of common, eg grazing cattle, sheep, etc, collecting wood;


• the rights of any neighbour, eg one holding a right of way over the common;


• the rights of any lessee or licensee, eg an occupier of mineral workings;


• any rights that a member of the public has to walk or ride on the common (under the Countryside and Rights of Way Act 2000;


• any powers given to third parties, eg a Commons Council;


• any organisation or official with powers to act under statute, eg for conservation, ancient monuments, etc..

Common Land - Royal Forests 1

Royal Forests are much associated with common land although they originate for different reasons. In England the Anglo-Saxon kings first created "Royal Forests" but it was William 1 who imposed the first after 1066. It is likely that he "took-over" some or all of the the extant Royal Forests. But what are they?

Essentially they were areas of rural land of mixed uses where Forest Law was imposed. The sovereign did not necessarily directly own the land but merely used it for hunting. More correctly perhaps, under feudal land ownerships and tenures William and his successors owned all land absolutely. It was successively held under the king by barons then downwards by Lords of the Manor, ie by feudal alliance.

Overriding the feudal pattern of tenures the areas subject to Forest Law; in effect was a kind of "Green Belt" in favour of the king for hunting purposes. In other words like the Green Belt (1) it was not land owned by the king. The Forest Law was a harsh regime intended to ensure the husbandry of deer herds for hunting purposes. Trees vegetation and deer were safeguarded against miscreants who, initially at least, suffered severe penalties for loss of or damage to the king's "property".

The link to common land is that each of the Royal Forests would have had common land within their extent. Initially in William's time the common land was probably held directly by him by alloidal tenure (2): later, under Common Law it seems that the Lords of the Manor came to own common land. It was,of course subject to the customary rights of the commoners.

Note 1 In fact the original Green Belt was land owned by the London County Council under the Green Belt Act 1938; it was later imposed as a planning designation and the ownership requirement abandoned. Lullingstone Park in Kent is an example of such a land acquisition for Green Belt purposes but is now designated - as is most of the land surrounding London.

Note 2 Alloidal tenure is absolute ownership which recognises no superior owner. For example, all individual Anglo-Saxons owned their estates by alloidal tenure. Similarly, under today's "constitution" the Crown is the owner of all physical land by alloidal tenure. Thus freeholders own legal "estates" from the Crown - hence the concept and practice of "escheat" where a subject dies intestate with out heirs under the Rules of Intestacy.