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.