Ownership of Commons
This information covers various aspects of ownership, not only clarifying the rights, obligations and limitations of the landowner but also indicating what happens if there is residual grazing, how quasi Rights of Common are handled and issues around confused ownership or deregistration of common land.
From a public point of view, there is some confusion over ownership of common land with a widely held view that “common” means that everyone (or no one) owns it. In reality the ownership of a common usually lies with the Lord of the Manor or his legal descendant.
Landowners’ rights, obligations and limitations
Traditionally, most commons were owned by the lord of the manor but increasingly today ownership of commons is vested in institutions, charities, corporations and trusts as well as private individuals.
The owner of a common has a right to use the land and take any of its products provided that he leaves sufficient to satisfy what has been granted away – as a right of common – and provided that he does not use the land unnecessarily or wantonly.
The main rights of a landowner of a common are outlined below:
Rights in the soil or mineral rights - the landowner may take gravel, loam, turf, coal and stone from the land provided that his actions do not infringe upon the commoners rights. For example, the owner may have traditionally quarried a small area for stone which had no impact on the graziers of the common. However, a planning application to commercially quarry the site or dramatically increase the size of the quarry could restrict the grazing area to the point that the rights of common could not be fully exercised.
Timber and woodland - the owner has a right to plant trees provided that he does not infringe the rights of the commoner. There must be sufficient grazing (or other products) remaining after the planting to satisfy the rights of common. Likewise, the owner has the right to cut down trees and take timber provided that any rights of estover (to cut wood, gorse or furze for domestic fuel) can be satisfied by what remains. In practice, the owner is likely to need to protect new planting by fencing against stock or deer and this will require Secretary of State consent under s.38 of the Commons Act 2006. (refer to Capital Works). The granting of permission to fence does not in any way affect the status of the land which has been enclosed as common, and this remains subject to rights of common. A commoner retains his right to exercise these rights and could theoretically create an opening in the fence to allow his stock to enter the enclosure, although this might raise legal questions about a commoner’s right to graze a particular part of a common and whether a landlord’s surplus exists. Consequently, it is essential that the owner works with right holders and obtains their agreement to the scheme.
Sporting rights - the right to take game and ground game lies with the owner of the soil although it is possible for rights in common to take game (known as animals ferae naturae) to have been granted. Exercise of the owner’s right must not interfere with a commoner’s right to take game or any other right of common. The landowner’s right to game can be assigned or leased and, in some areas of the country with large heather grouse moors, is a very valuable asset. In such areas, the objectives of the graziers and owner of the sporting rights may be in direct opposition and can be a major cause of conflict.
In addition to the legal obligations associated with the land itself, institutional common land owners, such as trusts, charities or local councils, are often governed by specific statutes or covenants which further define their interests and responsibilities in the land.
Grazing – the landowner’s residual right to graze
The landowner has the right to any surplus grazing left after commoners have exercised their rights, reflecting the fact that common land is land where rights are shared by the owner and the commoners.
It has been established that an owner can use or let any surplus grazing. Traditionally this would have been done by a seasonal grazing licence as the surplus could only be calculated on a year-to-year basis. However, the quantification of rights under the Common Registration Act 1965 provided the opportunity for more precise calculation of the surplus grazing, which, together with the permanent surplus on some commons due to abandonment, has led to an increasing tendency to grant rights of grazing for fixed periods.
In contrast, the over registration of rights on some upland commons in 1965, when the carrying capacity of the common and the land to which they were attached was not properly assessed, has led to a complete lack of surplus on some commons.
Defra have allowed landowners and tenants, to claim Basic Payment on the surplus grazing on a common. See the information about this in the BPS section for more information.
Quasi rights of common
The lord of the manor has quasi rights of common in respect of his freehold and tenanted land due to the need to turn out his own cattle and sheep. Technically this is not a right of common as the ownership of the common and the right of common are united. However, it has been accepted that these quasi rights exist although they were not normally permitted to be registered under the Commons Registration Act 1965.
Tracing ownership of commons
It is usually possible to ascertain the owner of a common by referring either to section 1, the ownership section in the Commons Register or the Land Registry. If neither of these sources can provide details of ownership, it might still be possible to trace the owner through other sources. For more information on tracing ownership refer to the guidance under Unknown Ownership in the Information Hub.
Registration and exchange of common land
The Commons Act 2006 introduced new provisions for the deregistration and exchange of common land. Previously the appropriate mechanism for this was under the Inclosure Act 1845. The new legislation allows the owner of common land to apply to the Secretary of State for it to be released from registration. If this “release land” is more than 200 square metres in area, the applicant must provide land in exchange – “replacement land”. If less than 200 square metres, this is not necessary although may prove beneficial to the application.
The replacement land must not be registered as common or town or village green. In deciding whether to allow the exchange regard will be given to the interests of people having rights in or over, or occupying the release land, especially the commoners, the interests of the neighbourhood and the public interest.
If approved, the land will be released from the register and rights over it extinguished. The replacement land will be registered and, in most cases, the extinguished rights will be transferred to it.