Agricultural Activities

Ancillary agricultural activities on commons

Rights of Common are held to extend to ancillary activities which “are reasonably necessary for the reasonable enjoyment of the principle or primary right”.

Such ancillary activities have been regarded as easements in law and can consequently be acquired by prescription, that is, by long, unchallenged use. However, not all additional management practices have been accepted in law as reasonably necessary for the enjoyment of the primary right to graze. It is possible for the owner of the common to grant permission for ancillary activities such as feeding and bracken cutting.


Use of vehicles

The Countryside and Rights of Way Act 2000 specifically states that access using vehicles is prohibited. It is also an offence to take a motor vehicle onto common land unless it is within 15 yards of a road and for the purposes of parking or with lawful authority given by the owner(s) of the common.

Where the common is owned by commoners, for example a regulated common, the commoners can grant themselves lawful authority. Permission from the owner may be for stock management but this would preclude the use of a bike or vehicle for recreation.

However, in line with the principle established in White v Taylor [1968], that a commoner may do anything that is incidental to the exercise of his rights, the case of Besley v John [2003] determined that there was an implied right for a commoner to use a quad bike for reasonable stock management purposes, although what was reasonable was not defined.

In addition it is possible to acquire a right to drive a vehicle on the common by prescription if over 20 years of such use can be proved.


Supplementary feeding

Commoners exercising grazing rights are increasingly likely to provide supplementary feed for stock during the winter months and it could be held that such supplementary feeding is necessary to enable the reasonable enjoyment of the principle or primary right to graze. However, the case of Besley v John [2003], referred to above, held that there could be no usual implied right to put supplementary feed out on a common, as a commoners right was only for his stock to eat the grass growing on the common. Consequently the practice of supplementary feeding may be challenged by a land owner or commoner.

Agri-environment agreements designed to restore the quality of vegetation are increasingly seeking to reduce or stop the practice of supplementary feeding on commons.


Burning

Heather burning is a regular activity on commons, particularly those with a shooting interest, where it is used to create a mosaic of different aged heather which is an ideal habitat for grouse (refer to Sporting Management). It is not regarded as an ancillary activity necessary for the reasonable exercise of grazing rights of common and should therefore only be carried out by graziers with the landowner’s consent. Where there is sporting interest on a common the responsibility for this operation is normally retained by the shooting interest. Any heather or vegetation burning carried out by landowners must ensure that a sufficiency of grazing remains for the commoners.

All burning must comply with the Heather and Grass Burning Regulations 2007. These prohibit burning between 16 April and 30 September in upland areas (Severely Disadvantaged Areas) and between 1 April and 31 October on all other land, unless a licence has been issued by Natural England.

Those applying for a licence must inform others with an interest in the land, including those with rights of common on common land. All burns must be controlled throughout and all reasonable precautions taken to prevent injury to people or damage to adjacent land. Burning must not start between sunset and sunrise.

Bracken control

Bracken control by means of aerial or localised spraying, cutting, crushing or rolling, is a regular activity on common land. The rapid spread of bracken and the gradual shading out of grass and build up of litter suggest that control could be regarded as necessary to enable exercise of the primary right to graze. However, there has not been any case law to establish whether bracken control is an ancillary easement necessary for the reasonable enjoyment of the primary right to graze. As such, it is advisable for commoners to obtain landowner’s agreement prior to carrying out any bracken control.

Further information and signposting



For more information on regional and local practice the following websites may be able to help.

Rozzie Weir