Protecting Commons

Protecting commons - Legislation 1866 to 1965

The second half of the 19th century saw an increasing political response to the ongoing inclosure of common land in England. The Commons Preservation Society (now known as the Open Spaces Society) was founded in 1865 to fight for the preservation of important recreational open space and heath around London and in 1866 the Metropolitan Commons Act was passed which prohibited the further inclosure of common land situated in the Metropolitan Police District.

This restriction has been in place ever since and it is due to it that areas such as Wimbledon Common, Hampstead Heath and Blackheath remain free from obstruction and open to the public.

The Commons Acts of 1876 and 1899 changed the emphasis of common land legislation from inclosure to firstly, regulation of the existing use by the introduction of Boards of Conservators and local authority schemes of management and, secondly, the provision of public rights of access. These rights of access were technically to benefit those in the neighbourhood but due to the lack of any policing or enforcement they effectively became de facto rights of access for all.

The Law of Property Act 1925 contained two direct changes to common land law but also had significant indirect consequences for commons management. s.194 of the act made it unlawful to erect fencing or other works that would impede access to land subject to rights of common unless Secretary of State consent had been obtained whilst s.193 introduced a right of public access on many commons in and around urban areas. However, the act also led to the effective redundancy of manorial courts and, as a consequence, there was no formal mechanism for enforcing ownership rights and rights of common. The result was a gradual deterioration of the management of commons for the next forty years due to the difficulty of identifying the interests and parties involved.

The National Trust Acts

The National Trust Act 1907 was introduced primarily to make the organisation a statutory corporation. Its statutorily defined purposes included the maintenance and management of lands as open spaces or places of public resort. In addition s.29 of the act required that the Trust keep common land unenclosed and unbuilt upon as open spaces for recreation and enjoyment of the public. No specific or additional rights of access were granted to the public.

The Trust was required to resist any encroachment or enclosure. However, the 1971 National Trust Act extended the Trust’s powers to carry out works on its land so that they were in line with the powers of other landowners. (Refer to the Capital Works section of the toolkit).

The National Trust Acts only apply to commons where the Trust owns the land, not those where it has only rights of common.

Protecting commons - The Royal Commission Report 1958

The forty years after the introduction of the Law of Property Act 1925 saw continued loss of common land through encroachment and abandonment of rights, caused in part by the lack of an effective management structure, but also, by the agricultural depression of the early 20th century.

Simultaneously pressure for access to all common land was increasing and in 1955 a Royal Commission was established to consider whether the law needed to be changed in order to promote and balance the needs of the owner and commoners, and the enjoyment of the general public.

The Royal Commission reported in 1958 and recommended legislation to promote the registration, public access and management of commons. The first of these recommendations was partially enacted in the Commons Registration Act 1965 but the remaining two were not dealt with until the Countryside and Rights of Way Act 2000 and the Commons Act 2006 respectively.