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.

Common Land - "Lost Commons"

Conceiveably, common land has been in existence from the times of the Bronze Age (at least). However, it is only in the last 1000 years or so that the statute-mongers began to "codify" what had been customary law in England and Wales. From 1965 to the present a tidying up of the common land legislation has been going on - in a sense it has involved a tidying up of common land itself! In this process it has come about that the stakeholders were not as thorough as is "perfickly" possible! We have, it seems, lost some commons

The so-called "lost commons" are areas of land which have not been registered under:

• the original registration procedures of the Common Registration Act 1965; and,



• the relatively new procedures of the Common Land Act 2006.

For this post the issue is "Can the lost commons be found?" The answer to the question is multi-faceted - it depends!

It is probable that many of the lost commons are known and that as time passes more may be discovered. We know that the Commons Act 2006 has a provisions for procedures for registering "new" and "lost" commons. (For the latter see s22 and schedule 2 of the 2006 Act.) (Note: New commons are different from lost commons.) To what extent, then, will the procedures for registering the lost commons be available?

The Open Spaces Society produced guidance entitled "New opportunity to rescue lost commons". It was for the government's introduction (in October 2008) of piloting the implementation of the 2006 Act in several areas of the country, including registation of lost commons. It remains to be seen just how far the pilot's implementation on registrations was able to go.

Piloting of New Registrations etc: The government introduced the piloting in several are s in October 2008, eg in Kent. Thus, for instance, Kent County Council could:

• de-register any common which had been wrongly registered; and,


• register land which was found to be common land.

Because the piloting was slower than expected, the period for it was extended to September 2010 (see Regulation to this effect dated July 2009). As a consequence the nation-wide scheme has been delayed to after October 2011 (see Hansard 24EW 4 February 2010)

However, in our financially straitened times it seems likely that the cause of the lost commons is a lost cause for the present (at least).

Epping Forest - Works and Temporary Use

Epping Forest is one of the exempt "commons" under the Common Land Act 2006 (see s 5(2)(b)); so the operative legislation is the Epping Forest Act 1878. Subject to a possible Judicial Review, that Act is about to be "reformed" by the Legislative Reform (Epping Forest) Order 2011(not yet law - currently in draft in the Houses of Parliament). The order is subject to the conditions of s 3(2) of the Legislative and Regulatory Reform Act 2006.

The draft Order illustrates the impact that the last mentioned 2006 Act can have on life in England. For centuries Epping Forest has been a special protected place for Essex men and women; now a Minister who is satisfied section 3(2)is cleared can, in effect, change that special place - albeit for a short temporary period until after the Olympics are over.

So what is so special about section 3(2)? (One must keep bearing in mind that it is part of one of the two pre-conditions to the Order and that it has six conditions itself (and that is not the full story - bearing in mind the "provisions" and references to "alterations", "form" and "arrangement")?

It is intended that temporary works or development are to be carried out. Unlike the Common Act 2006, which provides for s 38 consent of the Secretary of State (or service of a notice of exempt works). Briefly, Epping Forest requires the legislative route briefly indicated above. The power of s 3(2) seems incredible - the essence is that for the "policy objective":

• a) legislation seems to be needed:


• b) it seems proportionate:


• c) it does not seem to remove protection:


• d) it seems a fair balance of what appear (to me) to be competing public interests:


• e) it does not seem to prevent theexercise of any right or freedom:


• f) it does not seem to be of constitutional significance.

For course, I am not trying to be definitive (even if I had the ability). I hope merely that the intended facility will be in place for a temporary period and then demolished; and that every scrap of potential archaeological remains (evidence for future archaeologists) will be removed in the second decade of the 21st Century: not by our successors at a "dig" on the site in say 2000 years time!

Common Land - Adverse Possession

It seems that the government has indicated that "squatting" may be made illegal. It might be suggested, therefore, that so-called "squatters' rights", which are often the basis for adverse possession may become illegal. As far as common land is concerned the issue is whether the enclosure of such land is to become illegal...?

The adverse possession of common land which is registered under the Common Land legislation is explored in an "informal" guidance note updated and re-issued by DEFRA in March 2010. Briefly, the underlying message in the guidance is that whilst adverse possession against common land is possible it is not easy to achieve: in some instances it is not possible due, for instance, to statutory protection. Also, it indicates that in cases where title to the land by adverse possession is successfully gained any rights of commoners, eg to graze animals, are not extinguished. Furthermore any statutory public rights to walk or ride are similarly not extinguished by the new owner's adverse possessionary title.

Adverse possession of common land held by the National Trust is briefly explained in a short pamphlet entitled "Protecting National Trust common land". It states that any attempt to gain registered title, ie at the Land Registry of such common land is not legally possible and would be objected to by the National Trust.

Common Land - Burials and the Like (Updated 30 July 2011)

Provided the owner agrees it seems that scattering a deceased ashes on common land does not require official permission, eg an application to the Planning Inspectorate under s 38 of the Common Land Act 2006. This assumes that no protected plant species, commoners' rights, etc are adversely affected.

If an urn is to be buried it likely that official sanction would be required. It was recently reported that a golfer wished his ashes to be buried on the golf course where he had regularly played. The matter was referred to the local authority as owner of the land - which was common land. Exceptionally permission was granted but it is likely a one-off matter.


In the past common land has been used as burial grounds. Numerous tumuli are ancient burial sites. It seems likely that they were constructed on what we would call "common land", ie being outside of the pale of an individual or collective Bronze Age settlements. The likely alloidal nature of tenure in those times suggests that the land such land was really free and open to all for what we would call "commoners' rights".


Three other execution or burial "arrangements" of more recent times may be given:

1. in Tudor times gibbets or gallows were placed on or near common land so that the deceased criminals could be buried on unhallowed ground, even in tumuli - the burial was made in unconsecrated ground;
2. Kennington Park was formed when Kennington Common was enclosed under the Kennington Common Inclosure Act 1852. Part of the Common was known as Gallows Common  and executions were held there, eg in the 1740s. In the early 19th Century another part of the Common became the site of St. Mark's Church (a "Waterloo" church) and a burial ground; and,
3. in the 19th Century the Great Torrington Burial Board enclosed common land to create a new burial ground

Common Land - Development, Works and Happenings

Every week the development of common land, works to common land or some "happening" on common land is reported. The reports are sometimes so inadequate in detail that the reader is left with a hazy idea of the true state of the situation. The issue is whether the work, etc is lawful or not.

This post is intended to give the reader some questions (and insights to their answers) which should clarify a report - provided the questions are answered in the report or by subsequent investigation! Later posts will endeavour to illustrate particular problems.

The questions are:

1. Is the land common land?


2. Is there an owner?


3. Has the owner or some other person given permission?


4. Is the development, work or happening lawful?


5. If the development, etc is unlawful, can action be taken to remedy the wrong?

Answer 1 Common land is defined in and and must be registered under the Common Land Act 2006. Some areas of land like common land are excluded from the Act - essentially because they are protected by other means.
Answer 2 All land is owned and the owner (if known) of a parcel of common land will be recorded in the relevant register under the Common Land legislation (not being the Land Registration legislation).
Answer 3 If known, the owner would normally be asked to give consent. However, if a compulsory purchase order is involved the owner may be objecting. In the latter instance it may be appropriate to petition parlliament!
Answer 4 All physical works to common land in England requires the consent for the Secretary of State (unless exempted) under the Common Land legislation. This would be in addition to any planning consent or development consent which may be required under Planning legislation.
Answer 5 By tradition common land is protected by its stakeholders so in most situations the answer should be "yes" - provided the relevant "stakeholders" have the will and the wherewithal!

Common Land (Wales) - Glastir's Common Land Element

For five years from 2012 Wales will have a new or refreshed sustainable land management scheme, namely "Glastir". This three parter has an "All Wales Common Land Element" of two options.

1. The first concerns a closed period of three continuous months between November and March.



2. The second covers stocking densities on each common.

Common land development officers (CDOs) are appointed to undertake the following:

1. to advise, liaise and work with with commons associations/graziers associations;



2. advise graziers or groups of graziers; and,



3. to help set up grazier associations (if appropriate).

Common Land - Fencing Works - Stakeholders

The idea of cattle, sheep or ponies wandering about on common land evokes happiness or unhappiness! The likes of Exmoor, New Forest and Epping Forest are examples of open country which seem ideal for commoners' rights of animal grazing or foraging - they are largely unfenced.

Normally farmers and others owning "normal" land fence their animals in: by long tradition owners of "abnormal" common land require the adjoining owners of gardens, etc to fence out the commoners' grazing animals. In other words common land is traditionally not fenced.

Unfenced common land was, I guess, intended by our ancestors to be for the animals' benefit. But nowadays car and lorry drivers dislike unfenced-in animals who tend to ignore the "look left, look right etc" routine of pedestrians wanting to cross a busy highway.

This often leads to hulabaloos by stakeholders when somebody or some body wants to (or does) reintroduce grazing animals to a piece of common land. Stakeholder drivers do not want the common to be unfenced. Stakeholder residents are afraid of being (or are) chased by animals so they want fencing. Walkers and dog walkers tend not to want fencing because it is against tradition of unrestricted access. (Note: this quasi-tradition is within living memory of the CROW Act 2000 which granted public access.)

Also, proposals for fencing must be considered by an inspector on behalf of the Secretary of State. It is surprising how frequently it is alleged that the parish council or some other legal person has not followed this seemingly important requirement to get apiece of fencing with gates installed on their local patch of common land. As the first fence post is pounded in without due process the miscreant stakeholder cannot be right!

Common Land - Ownership and Powers of Ownership

Just recently it was reported that a common in Bures (Essex/Suffolk border) has been purchased by a chartiable trust with money raised from the local residents and others further away.

Many believe that the ownership of common lands in England and Wales is in the hands of "public" or the local council. Yes, some common land is owned by local authorities; but it is not unusual for your local common to be held by a private individual, a private trust, a statutory trust, eg the National Trust, or one of our many government departments, eg the Ministry of Defence.

Powers of an owner of common land are not unlike the ownership of other land but the law affecting common land ownership has been shaped by several features, namely:

• the ancient rights of commoners;




• long-held customary and statute law since the Norman Conquest;




• more recent law on enclosures over the last 600 years or so;




• legislative provisions affecting particular common lands from the 19th and 20th Centuries, eg Acts regulating the National Trust's commons;




• statutes and regulations on a host of general matters, eg planning, compulsory purchase and development; and,




• finally, specific Acts and regulations of the late 20th and early 21st Centuries which relate directly to common land and rights over such land, eg the Commons Act 2006.