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!