Guidance

Commons registration authorities: process new event applications

How to register new rights and make changes to existing rights of common.

From:
Department for Environment, Food & Rural Affairs
Published
17 November 2015
Last updated
18 November 2015 — See all updates

Applies to England

The content on this page is in beta and may be updated frequently. This guide is part of a collection which will replace guidance for commons registration authorities and the Planning Inspectorate.

Rights holders or members of the public need to amend existing information in, or add new information, to the register to record any new events. This is a new event. For changes to be classed as new events they must have happened on or after:

  • 1 October 2008 if you’re a pioneer commons registration authority
  • 15 December 2014 if you’re a 2014 commons registration authority

Events that happened before these dates are called historic events.

You’re a pioneer registration authority if you’re one of the following councils:

You’re a 2014 registration authority if you’re one of the following councils:

You can’t accept applications for land that:

  • isn’t in pioneer or 2014 areas
  • is in Epping Forest, the Forest of Dean or the New Forest

Create a new right of common

You can create new rights of common over an existing common, or over a new piece of land to create a new common. You can’t create new rights of common over a town or village green.

The right of common must be attached to land. This land is then called the ‘dominant tenement’. It isn’t possible to register a right of common claimed by prescription (long use that wasn’t challenged by the landowner) as a new event, but it may be possible to do so as a historic event.

If you receive an application to create a new right of common to graze animals, you must consult the local area office of Natural England. It will tell you whether it thinks that the land can sustain the grazing alongside other grazing on existing commons. You may also have to decide if any rights that commoners aren’t using at the moment may be used in the future. However, you must make the final decision, and reject the application if the extra grazing would be unsustainable. If you decide to allow extra grazing against Natural England’s advice you should explain why in your decision.

You can also create a right of common as a historic event.

Evidence you need

You must have:

  • application form CA1
  • evidence that the applicant owns the dominant tenement or the common
  • consent from other owners, tenants or lessees of the dominant tenement and the common (except if any of these is the applicant)
  • details of the right to be created
  • either the details and a map of the common, or the common’s register unit (if the land is already registered), or both if only part of the common has been registered
  • a map and the postal address, Ordnance Survey grid reference or Land Registry title number of the dominant tenement
  • evidence that the land can sustain the new right and all existing rights, if the right is for grazing on an existing common

If applicants want to create a new right of common over just part of an existing common, they must supply a map with their application form.

Once you’ve made a decision, quote the Commons Act 2006, section 6 in the notice on your website.

Amend the register

Use model entry 3 as a reference if you’re registering a new right of common. Use model entry 18 as a reference if you’re registering new common land.

Vary an existing right of common

You can make the following variations (changes) to existing rights of common:

  • add new land to an existing common - but the new land can’t be a registered green
  • replace some or all of the existing common - again, the new land can’t be a registered green
  • vary what the right can do - eg change the grazing animals from cattle to sheep

You can only accept an application to reduce the area over which a right can be used if the applicant provides replacement land. This is so that the total area of land over which the right can be used isn’t reduced.

You can’t accept applications for any of the following:

  • extend what a right can do (eg increase the number of cattle from 50 to 75)
  • deregister land and remove it from the commons register, unless the land is being replaced with new land - even if all rights of common are extinguished (cancelled)
  • amend the dominant tenement (the land the right of common is attached to)

You can only accept applications from the following:

  • the current common’s owner
  • the future common’s owner
  • the dominant tenement’s owner
  • the owner of the right in gross

Evidence you need

You must have:

  • application form CA2
  • evidence that the applicant owns either the current or future common, the dominant tenement or the right in gross
  • consent from the owner of the current or new common, or their tenants or lessees, the owner of the dominant tenement or right in gross, if they’re not the applicant
  • the register unit numbers
  • the entries in the rights section
  • details of the change (and a map, if applicable)
  • a map and postal address, Ordnance Survey grid reference or Land Registry title number of the dominant tenement, unless the right is held in gross
  • if the right is for grazing, evidence that the land can sustain the varied right alongside any existing rights
  • if the variation applies to only part of a right of common, an application to apportion the rights (because the right must be apportioned before you can vary that part of the right)

If you receive an application to vary a grazing right, you must consult the local area office of Natural England. It will tell you whether it thinks that the land can sustain the varied grazing alongside any other grazing on existing commons. You may also have to decide if any rights that commoners are not using at the moment may be used in the future. However, you must make the final decision, and reject the application if the extra grazing would be unsustainable. If you decide to allow extra grazing against Natural England’s advice you should explain why in your decision.

Once you’ve made a decision, quote the Commons Act 2006, section 7 in the notice on your website.

Amend the register

Use model entry 4 as a reference to amend the register. Use model entry 17 to add new land.

If the rights are being apportioned, you must register the apportionment before you register the variation.

Apportionment of rights of common

Rights of common are apportioned (divided) when the dominant tenement (the land the right of common is attached to) is divided into 2 or more shares. The rights of commons must be apportioned pro rata, which means in proportion to the share of the dominant tenement.

For example, a right of common to graze 100 sheep is attached to a dominant tenement of 40 hectares. The owner sells 5 hectares. The purchaser’s share of the right would be calculated as: total number of rights (100) divided by the total area of the dominant tenement (40) multiplied by their share of the dominant tenement (5). This would give the purchaser a right to graze 12.5 sheep on the common. You must round down fractional rights - in this example to 12 sheep.

Fractional rights are only extinguished (cancelled) if and when the apportionment is registered - see section 13(3) of the Commons 2006 Act.

Rights can’t be apportioned if they’re only attached to a dwelling (rather than a larger area of land that includes a dwelling, which is acceptable) or the right is unquantified (it isn’t measured by weight, size or number). The following unquantified rights can’t be apportioned:

  • estover - the right to take specific products, such as timber, firewood or bracken
  • piscary - the right to take fish
  • turbary - the right to take turf or peat

If an unquantified right is for the benefit of the whole of the dominant tenement, rather than attached only to a building, you may allow an apportionment if it would not increase the overall burden on the common. For example, a right to take bracken for cattle bedding may imply a right to take enough bedding for all the cattle that may be kept on the dominant tenement over winter. If the dominant tenement is divided into 2 or more holdings, you may allow each of those holdings the same right, because in practice it would be limited by the number of cattle that can be kept on that holding over winter.

Rights that are a result of an apportionment must be treated as if they were registered separately. This ensures that the owner of each share of the rights can do what they like with it without affecting the others who have a share in the right.

If a right has been apportioned but hasn’t been registered, it’s possible for someone to make a declaration of entitlement to use their portion of the right without having to register the apportionment first.

Applicants don’t need to register apportionments except when an apportionment must be registered before it’s possible to make certain types of other amendments to the register that only relate to part of a right – known as a ‘primary’ application. The primary application must be submitted at the same time as the application to register the apportionment. The primary applications are:

  • variation
  • reallocation
  • surrender and extinguishment
  • severance
  • statutory dispositions

You can accept applications from anyone who owns any part of the dominant tenement. An application may be made jointly but it isn’t necessary for all owners of the dominant tenement to apply. If there’s a primary application, the same person must apply for the apportionment.

The common-law principle that allowed a right of common to be extinguished if the dominant tenement was developed and could no longer benefit from the right has been abolished. So rights attached to land remain attached to that land whatever it’s used for.

You can apportion rights as a historic event but only if the apportionment is necessary to make another type of amendment to the register (the type of amendment covered by a primary application), such as variation or surrender of a right.

Evidence you need

To register an apportionment of rights, you must have:

  • application form CA3
  • proof that the applicant is the same person (or people) who has made a primary application, if relevant
  • evidence that the applicant owns the land
  • the register unit numbers
  • the rights section entries
  • an Ordnance Survey map of the area of the dominant tenement owned by the applicant at the correct scale - at least 1:10,560 for moorland and 1:2,500 for other land; the map must show the current field boundaries
  • supplemental maps showing the new dominant tenement to be created and its postal address, Ordnance Survey grid reference or Land Registry title number
  • the applicant’s calculation of how the rights have been apportioned

Once you’ve made a decision, quote the Commons Act 2006, section 8 in the notice on your website.

Amend the register

You must register the apportionment before you register other changes that result from a primary application.

Each new dominant tenement needs a supplemental map. Several dominant tenements can be shown on 1 supplemental map. This applies even if the old dominant tenement (before it was apportioned) was referred to by OS parcel units or any other ways that didn’t involve a map.

Use model entry 5 as a reference to amend the register. If the applicant doesn’t supply information about the residue (what’s left) of the old dominant tenement (before it was apportioned), repeat the current ownership details in column 3 of the rights section.

Sever rights from land

Rights can only be permanently severed (separated) from a dominant tenement (the land the rights of common are attached to) in 2 ways:

  • Natural England or a commons council (or another body that represents the rights of commoners and is appointed by order) applies to have the rights transferred to them
  • the Secretary of State for the Environment makes an order for the right to be transferred to a body or a person

Before Natural England makes an application, it must give at least 2 months’ notice to the owner of the common that the right can be used on (unless they can’t find the owner’s name). It must also give notice to any commons council or designated body that represents the rights of commoners for that common. The notice must:

  • specify the name and address of the owner of the dominant tenement
  • describe the right to be transferred
  • state the proposed reason for the transfer
  • contain an extract of the relevant entry in the register that shows the details of the right, the rights section entry number, the details of the dominant tenement, the register unit number of the common and, if the right can be used over only part of that common, the details of that part of the common
  • state if and to what extent the right has been used during the previous 5 years
  • specify the date on which Natural England intends to make its application

If a commons council or designated body that represents the rights of commoners is responsible for the common, it must consent to the transfer.

Owners of dominant tenements can temporarily sever their rights of common from the dominant tenement to lease it for up to 2 years.

If the application only relates to part of the right, there must be an accompanying application to apportion the rights. You must register the apportionment before the right can be severed.

Evidence you need

To register the severance of rights you must have:

  • application form CA11
  • consent from the owner of the dominant tenement, and if appropriate, either the commons council or the designated body representing commoners
  • the register unit numbers
  • the entries in the rights section
  • a map of the dominant tenement, and its postal address, Ordnance Survey grid reference or Land Registry title number
  • evidence that notice was given to the owner of the common, and any commons council or designated body representing commoners if Natural England is the applicant

Once you’ve made a decision, quote the Commons Act 2006, section 9 in the notice on your website.

Amend the register

Use model entry 14 as a reference to amend the register. The severance is only legal after it has been registered.

Attach rights of common in gross to land

Owners of rights of common in gross (rights that are deeds owned by people rather than a right attached to land) can apply to attach them to a piece of land, which creates a dominant tenement. The owner of that land becomes the person entitled to use the right. The applicant must get permission from anyone entitled to occupy the land that they want to attach the right to. You must reject the application if the occupiers refuse consent.

Evidence you need

To register the attachment of rights of common in gross you must have:

  • application form CA4
  • the register unit numbers
  • the rights section entries
  • a map and the postal address, Ordnance Survey grid reference or Land Registry title number of the dominant tenement
  • evidence of consent from the land’s occupier (if different from the applicant)
  • evidence that the applicant owns the rights in gross

Once you’ve made a decision, quote the Commons Act 2006, section 10 in the notice on your website.

Amend the register

Using model entry 6 as a reference to amend the register.

Reallocate rights of common

Landowners can apply to reallocate their rights of common if part of the dominant tenement (the land the rights are attached to) stops being used for agricultural purposes. All the rights become attached to the part that continues to be used for agriculture. For example, if they sell off a quarter of the dominant tenement for housing, all the rights become concentrated in the three-quarters still used for farming. The part of the dominant tenement used for housing would be removed from the register.

Agricultural purposes are:

  • growing crops
  • pasture or grazing
  • forestry
  • keeping land as woodland or scrubland
  • an activity that qualifies for a payment under the Basic Payment Scheme

If reallocation happens because of a compulsory purchase order, the owner must apply after the compulsory purchase order is confirmed but before the land is actually sold.

If the application only relates to part of the right, there must be accompanying application to apportion the rights. You must register the apportionment before the right can be reallocated.

Evidence you need

To register the reallocation of rights of common you need:

  • application form CA5
  • the register unit numbers
  • the rights section entries
  • a map and the postal address, Ordnance Survey grid reference or Land Registry title number of the dominant tenement
  • the details and a map of the part to be sold (the ‘relevant part’)
  • consent from any tenant, mortgage lender or owner of a leasehold
  • evidence that the applicant is the landowner
  • evidence that the land will be used for non-agricultural purposes (eg a copy of planning permission or the confirmed compulsory purchase order with evidence that the relevant part hasn’t yet been sold)

Once you’ve made a decision, quote the Commons Act 2006, section 11 in the notice on your website.

Amend the register

Use model entry 7 as a reference to amend the register. The change in the area of the dominant tenement will only be shown on the supplemental map.

Transfer rights in gross

Rights of common held in gross are rights held by deed by 1 or more people rather than being attached to land. You can register the transfer of rights in gross to a new owner. You can only accept applications from:

  • registered owners of rights in gross
  • the person to whom the rights in gross are to be transferred

If the current owner isn’t the registered owner, the current owner must apply to record a historic event (to transfer the right) or apply to transfer the right with the registered owner’s permission. This is because the registered owner remains the legal owner of the rights.

Evidence you need

To transfer rights in gross you need:

  • application form CA6
  • consent from the registered owner of the right (if they’re not the applicant)
  • the register unit numbers
  • the rights section entries

Once you’ve made a decision, quote the Commons Act 2006, section 12 in the notice on your website.

Amend the register

Use model entry 8 as a reference to amend the register.

Surrender and extinguish rights

Rights of common can be extinguished (cancelled) by being surrendered (given up) by their owners.

Only the following people can apply:

  • owners of the dominant tenement (the land the rights of common are attached to)
  • owners of rights in gross
  • owners of all or part of the common on which the rights can be used

You can’t extinguish rights through these previously acceptable methods:

  • the common and the rights used over it are owned by the same person (unity of ownership or seisin)
  • the owner is shown to have permanently stopped using the rights (abandonment)
  • when part of a common is enclosed, eg by a garden, and commoners don’t object (implied release)
  • the common is destroyed (eg by being covered by the sea) or the product (eg peat) has run out
  • there is a change in the dominant tenement that means that it can’t benefit from the rights - eg the right is attached to a house that is demolished and isn’t replaced, or the whole dominant tenement is converted into a reservoir

You can register rights that were extinguished before 1 October 2008 in the pioneer areas and 15 December 2014 in the 2014 authorities areas as historic events.

If the application only relates to part of the right, there must be accompanying application to apportion the rights. You must register the apportionment first so that you only extinguish the relevant proportion of the rights.

Evidence you need

To surrender and extinguish rights you need:

  • application form CA7
  • evidence of ownership of the dominant tenement, the right held in gross or any part of the common
  • the register entry for the common
  • the register entry for the right
  • the postal address, Ordnance Survey grid reference or Land Registry title number of the dominant tenement, and a map (unless it’s a right in gross)

If the applicant is the owner of all or part of the common, check that they have also included the consent of:

  • the owner of the dominant tenement or the rights in gross
  • a tenant
  • a mortgage lender or the owner of a leasehold

Once you’ve made a decision, quote the Commons Act 2006, section 13 in the notice on your website.

Amend the register

Use model entry 9 as a reference to amend the register.

Statutory disposition

Common land, town or village greens and rights of common can be bought and transferred to alternative land or removed from the register. This happens most often when a compulsory purchase order is made to buy land, eg for new housing. The legal instrument that causes the transfer or removal of the common is called a statutory disposition. There are many different types of statutory disposition.

Statutory dispositions can:

  • extinguish rights of common
  • extinguish rights of access for open-air recreation
  • extinguish rights to recreate on greens
  • give new rights of common or recreation to the people whose rights were removed
  • stop land being classed as common land or a green
  • create new common land or a green

The person or organisation that makes the statutory disposition or benefits from it must apply to amend the register to record the statutory disposition, including the registration of any replacement land. Changes are only legal once they’re registered, so you should process the application as soon as you can. For example a compulsory purchase order doesn’t extinguish a right of common until the extinguishment has been registered.

Statutory dispositions normally come into effect after the date on which they’re confirmed. You’ll need to check its terms to find the date on which it has or will come into effect, as you can only register land or rights after that date.

If the application only relates to part of the right, there must be accompanying application to apportion the rights. You must register the apportionment first so that the statutory disposition applies the relevant proportion of the rights.

Evidence you need

To remove or add land or rights you need:

Once you’ve made a decision, quote the Commons Act 2006, section 14 in the notice on your website.

Contact Defra if you know of any other legislation that has been wrongly left out of the table of statutory dispositions in paragraph 8 of Schedule 4 to the Regulations.

Amend the register

Use model entries 3, 4, 9, 13 (for exchanges of land), 15, 16, 17, 18 or 20 (for exchanges of land) as a reference to amend the register.

Declaration of entitlement to use rights of common

In many cases the rights section records the person who originally applied to register the rights rather than the person now entitled to use the rights.

You can accept an application from the owner of the dominant tenement (the land the rights of common are attached to) or a tenant if their tenancy is for more than 6 months.

You can cancel a declaration if it’s wrong or the person recorded in the declaration is no longer entitled to the right (eg the owner sold the dominant tenement or died). Before cancelling a declaration you must write to the person who made the declaration and take into account any replies made within 28 days.

You may receive applications that relate to only part of a right (eg 15 sheep when the register says 45). This can happen when the ownership of dominant tenement has been divided into more 2 or more shares (known as an apportionment). Someone who owns part of a dominant tenement can make a declaration in relation to their share of the right, even if no apportionment has been made. If this happens the application must show how the applicant calculated their share of the right, which must be pro rata. You must check that their calculation is correct.

You may receive applications from people who wrongly attempt to apportion their rights by making a declaration. Apportionments happen when the dominant tenement changes from having 1 owner to having 2 or more owners. Declarations only confirm who is currently entitled to use the right of common. You should allow an applicant who wrongly submits a declaration to withdraw their application and submit an apportionment instead.

Evidence you need

To register a declaration, you need:

  • application form CA15
  • the register unit number
  • the rights entry number
  • evidence of ownership of the dominant tenement or entitlement to occupy it - a copy of the title, a list of previous deeds or conveyances, or a copy of the lease agreement
  • the number of rights the applicant is entitled to - either all the rights in the register or part of the rights

Amend the register

Use model entry 10 as a reference to record the declaration of a whole right. Use model entry 11 as a reference to record the declaration that relates to part of a right. Send a copy of the updated register to the applicant.

If the declaration relates to part of a right, you can cancel that entry using model entry 12 as a reference to amend the register. If you cancel a whole right, draw a line through the entry in column 6 of the rights section of the register.

Register new greens

Anyone can apply to register a town or village green. Before you can consider an application, you must establish whether the right to apply has been excluded by a trigger event that has occurred in relation to the land. The exclusion remains until a corresponding terminating event occurs.

Check that the applicant has stated either of the following:

  • that the land has been used ‘as of right’ for sports and pastimes for 20 or more years at the time of the application, and is still in use when the application is made
  • that such use ended no more than 1 year before the date of application

The applicant must prove, on the balance of probabilities, that the land should be registered.

Check your register of landowner statements for any that relate to the land that the applicant wants to register as a green. A landowner statement ends any period of recreational use as of right. This has 2 possible consequences. If the land has been used for:

  • less than 20 years, the users wouldn’t have enough years of use to get the land registered so you have to refuse the application
  • more than 20 years, the users have 1 year from the date of the landowner statement to apply to register the green

A landowner statement doesn’t prevent the start of a new period of use if recreation on the land continues (it simply restarts the clock from zero).

Landowner applicants

Landowners can register their land as a town or village green. None of the tests apply, so they only have to supply:

  • evidence of their ownership of the land
  • written permission from any mortgage lenders and any leaseholders of the land (but only if their leases were granted for more than 7 years)

Evidence you need

Check that applicants have filled in application form CA9

Check that applicants have supplied a map of the land to be registered as a green. If the whole area is currently a common, they could tell you the register unit number rather than provide a map.

Check that applicants have identified the locality, or the neighbourhood within a locality, in which the recreational users live (landowner applicants can do this, but don’t need to). Applicants can name the administrative or geographical area (such as an electoral ward or parish), or provide a map. Once you have this information, put up a site notice at or near an entrance to the land.

On the application form, you also need to check that all of the following criteria have been met:

  • a significant number of the inhabitants of any locality, or any neighbourhood within a locality, have taken part as of right in sports and pastimes on the land for a period of at least 20 years
  • the date the use ended, if relevant
  • any times the use was interrupted when the green was closed
  • any planning permission affecting the land

The law and regulations dealing with the creation of new town and village greens has been supplemented by case law, which you must use when making your decisions. Defra’s assessment of the relevant case law follows.

Significant number

‘Significant number’ doesn’t have to mean a large number of people (McAlpine Homes case, High Court). The question is whether the number of local inhabitants who use the land, relative to the number who live in the relevant locality or neighbourhood, is enough to mean that it’s generally used by the local community (rather than being used occasionally by a few people).

The majority of the users don’t have to live in the locality or neighbourhood of the proposed green. As long as a significant number of them have used the land, it doesn’t matter that many or even most users come from elsewhere (Warneford Meadow case, High Court).

The inhabitants of any locality, or of any neighbourhood within a locality

A locality is a legally recognised administrative area, such as a civil parish, an ecclesiastical parish, an electoral ward or a conservation area.

You must decide the relevant locality (or neighbourhood within a locality) after looking at all the evidence (Laing Homes case, High Court).

If an application is amended to introduce a new locality or neighbourhood, the applicant and any objectors should have an opportunity to comment on it and gather more evidence to respond to it.

Whether ‘a locality’ can mean more than 1 locality

‘Locality’ means just 1 locality rather than multiples (Trap Grounds case, Lord Hoffmann; Edwards v Jenkins; Paddico, Justice Vos).

Meaning of ‘neighbourhood’

The concept of a neighbourhood is more flexible than that of a locality. Neighbourhoods don’t need to have legally recognised boundaries (Trap Grounds case, Lord Hoffmann), but you must be satisfied that an alleged neighbourhood is connected enough.

A neighbourhood must have a meaningful description and must have ‘pre-existing’ connectedness (Warneford Meadow case).

A housing estate could be a ‘neighbourhood’, even if it doesn’t have any community facilities, but a suggested boundary line that cuts across gardens, streets and an open space isn’t likely to be acceptable as a neighbourhood.

You should approach the question of connectedness using the ordinary English meaning of ‘neighbourhood’ (Leeds Group plc v Leeds City Council, High Court). The introduction of the word ‘neighbourhood’ as an alternative to ‘locality’ was clearly to prevent applications failing on technicalities (Trap Grounds case, Lord Hoffman).

Whether a neighbourhood must be within a single locality

A neighbourhood can be in 1 or more localities (Trap Grounds case, Lord Hoffmann; Leeds Group case, Court of Appeal, Lady Justice Arden).

The words ‘within a locality’ emphasise that a neighbourhood can be smaller than a locality and doesn’t have to have recognised administrative boundaries.

Whether there may be more than 1 neighbourhood within a locality

A locality can have more than 1 neighbourhood.

Meaning of ‘locality’ in the expression ‘any neighbourhood within a locality’

The High Court rejected an argument that a ‘locality’ can’t be too big to have served a broad spread of its inhabitants. This was in the context of considering whether 2 neighbourhoods were ‘within a locality’.

It was also agreed that an area that’s no longer a legally distinct administrative district after the 1937 local government reorganisation can still count as a ‘locality’ for the purposes of a ‘neighbourhood’ within it.

Inhabitants who gain the right to lawful sports and pastimes

After a green is registered, the inhabitants of the locality or neighbourhood gain the right to lawful sports and pastimes on the land (Lord Hoffmann, Trap Grounds case; Warneford Meadow case). If the inhabitants come from more than 1 neighbourhood (or locality), the rights apply to all the inhabitants of those neighbourhoods. .

Landowners applying to register their land as a green can nominate the locality or neighbourhood that has the right to sports and pastimes on that green.

Distribution within 1 or more localities

You don’t need to consider the distribution of the inhabitants within the locality or localities (Paddico case, Justice Vos).

Lawful sports and pastimes

You should interpret the expression ‘lawful sports and pastimes’ in a common-sense way (Sunningwell case). ‘Lawful sports and pastimes’ don’t have to be organised sports or communal activities. Solitary and informal activities such as dog walking and children playing will qualify. There’s also no need for local inhabitants to have taken part in a range of sports and pastimes.

An annual bonfire would be too sporadic to be considered as continuous use for lawful sports and pastimes (Redcar case, Lord Walker).

Lawfulness of sports and pastimes

‘Lawful’ means that the sports and pastimes must not cause injury or damage to the owner’s property (Redcar case, Supreme Court, Lord Hope). ‘Lawful’ also excludes activities that are criminal offences, whether or not damage is caused.

‘Lawful’ excludes civil offences, even though use ‘as of right’ is a form of trespass (Warneford Meadow case). Trespass that is intended to intimidate, obstruct or disrupt a lawful activity on the land is the criminal offence of aggravated trespass, and therefore might fail to qualify as lawful use.

As of right

Use of the land must be ‘as of right’ throughout the relevant period. ‘As of right’ is described as being nec vi (not by force), nec clam (openly), and nec precario (without the owner’s permission). It’s irrelevant whether the users believe that they’re entitled to do what they’re doing, or know that they’re not.

The law of prescription (long-term trespass that wasn’t challenged by the landowner) requires that the use relied on must be ‘of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed’. Use that is ‘trivial and sporadic’ will not be enough.

Openly

Landowners must be able to see that the land is being used and resist that use if they want to. The following types of use don’t qualify:

  • in darkness
  • in dense vegetation
  • use that only takes place when the users know that the owner is away - but use that happens when the owner is away would qualify if it’s just part of the pattern of use

Without physical force, verbal challenges or notices

Users must not break or cut through any barriers such as fences, walls, gates or hedges to get on to the land. However, if the landowner doesn’t repair a gap, there will come a point when entry through that gap won’t count as being forced entry and a new 20-year period of use as of right would start.

Landowners can end a period of use through continuous and unmistakeable verbal challenges (Dalton v Angus, Justice Bowen; Newnham v Willison; Smith v Brudenell-Bruce; Cheltenham Builders case; Redcar case, Lord Rodger, Supreme Court).

Landowners can also end use as of right by putting up suitably worded notices in obvious places. The following notices were considered to have been inadequate because they did not clearly forbid the use of the land (Redcar and Warneford Meadow cases):

  • ‘Warning. It’s dangerous to trespass on the golf course’
  • ‘No public right of way’

By contrast the following notices are clear:

  • ‘Private property. Keep out.’
  • ‘Do not trespass.’
  • ‘Private property. Access prohibited except with the express consent of [the landowner].’

You must consider whether users would have known that the landowner was objecting to and contesting their use of the land. You should find evidence of the actual responses by users. You and others should read notices in a common-sense and not a legalistic way.

If it’s suggested that the owner should have done something more than put up the notice, you should consider whether anything more would have been proportionate to the user in question (Smith v Brudenell-Bruce, Justice Pumfrey).

Landowners can’t claim that they couldn’t afford to put up notices as they need to do what’s necessary to tell people they object to their use (Warneford Meadow case).

Fencing off the area or taking legal proceedings against users will not always be necessary as long as users know that the owner objects to their use of the land.

It’s not necessary for a landowner to show that the use of his land was by force, it’s enough that he can show that the use was contentious, eg he tried to prevent it. Use of land becomes contentious when a landowner continually contests and interrupts use of their land in ways that are proportionate to the use of the land (Betterment Properties (Weymouth) Ltd v Dorset County Council and Taylor, High Court).

A landowner’s objection to an application may have the effect of making continuing use of his land contentious but it would depend on:

  • the circumstances in the case, including whether the applicants persist in the application
  • whether landowners back up their objection with other actions to challenge use
  • whether landowners communicate their objection widely to users

There is an unresolved question when local inhabitants continue to use land in spite of notices telling users to keep out. A landowner who puts up a notice stating ‘Private land - keep out’ would be ‘in a less strong position if his notice is ignored by the public than a landowner who put up a notice permitting use (Beresford case, Lord Walker). On the other hand, Lord Rodger’s view in the Redcar case suggests that the notice would have a continuing effect.

Without the landowner’s permission

Landowners can state or imply their permission if they want to end use as of right. An example of state permission is the following notice, ‘The public have permission to enter this land on foot for recreation, but this permission may be withdrawn at any time’.

Examples of implied permission include occasionally closing the land, or charging people for admission. Permission cannot be implied from a landowner’s inaction. Acts encouraging use, such as the landowner putting out picnic tables, would not prevent any informal use of that land from qualifying for registration.

If the ‘as of right’ test is satisfied, there’s no need to consult the landowner any further (Redcar case, Supreme Court).

Equality of rights

If the land is used by the landowner and the local inhabitants but neither use interferes with the other, then the land can be registered as a green. For example, in one court case it was decided that the taking of a single hay crop from a meadow was a low-level agricultural activity that was compatible with recreational use for the late summer until the following spring. Similar considerations would apply to other types of use by the landowner.

However, land can be registered as a green even when the landowners’ and users’ rights aren’t equal. For example, land was registered as a green despite the ‘overwhelming’ deference by local inhabitants to it being used as a private golf course.

Rights of way

You must separate use that is part of asserting a right to sports and pastimes over all the land, and use that suggests the assertion of a right of way. The rights of way don’t need to have been formally established or even claimed. You should also check whether paths have been added to a map of rights of way.

A right of way might be a defined track used as a shortcut or as the shortest route linking 2 roads - it should be one that appears to be used as a right of way rather than for green-type use.

Even if the journey is recreational (eg, to reach a viewpoint), it suggests the exercise of a public right of way (Trap Grounds case). A circular walk around a field (Laing Homes case) or a lake (Dyfed County Council v Secretary of State for Wales) may become a public footpath, but if walkers leave the path for other recreational activities, the way they use the track as well as the land may count as lawful sports and pastimes.

There is a distinction between ‘pure walking’ (which is right of way type use) and use of the route as a mere ‘incident of’ or ‘ancillary to’ activities such as sunbathing, swimming, fishing and picnicking (which is green-type use).

Use by (existing statutory) right

Land use cannot be ‘as of right’ if the users have a statutory or other legal right to use the land (Barkas, House of Lords). Examples include Law of Property Act 1925, section 193; CROW Act, section 2; Open Spaces Act 1906, section 10; Public Health Act 1875, section 164; land held under a charitable trust for public recreation.

On the land

Traditional character of land

There is no legal requirement for land to consist of grass or conform to a traditional image of a town or village green. Any land, even land covered by water, can qualify for registration if it has been used in the right way for the right period.

Inaccessibility of land

You can still register inaccessible areas on a proposed green as part of a green if they might form part of the scenic attraction or provide recreational opportunities (Trap Grounds case, Justice Lightman), eg:

  • a pond could be used for feeding ducks or sailing model boats
  • overgrown areas might provide a habitat for wildlife and benefits for bird watchers and others interested in nature

Approach the question in a common sense way. It’s unnecessary for users to have set foot on every part or even the majority of the land (Lord Hoffmann, House of Lords).

Buildings on land

You can’t register any area that has been unavailable for sports and pastimes for part or all of the relevant period. Examples include:

  • buildings (such as an electrical substation)
  • an area that has been fenced off or walled off

In other cases, you’ll have to judge whether an inaccessible or unused area should be regarded as part of the whole green.

For a period of at least 20 years

It’s enough that the local inhabitants, rather than particular individuals, have used the land for the full 20 years.

You’ll have to look at an application more carefully when any of the relevant circumstances have changed during the 20 years, such as:

  • the ownership of the land
  • the condition of the land
  • how the land has been used by the owner
  • the character of the neighbourhood

If any of the relevant circumstances have changed, it may mean that the land hasn’t been used for recreation for the full 20 years.

Whether all use must take place only after 30 January 2001

The words ‘the inhabitants of any locality, or of any neighbourhood within a locality’ took effect on 30 January 2001 (CROW Act 2000, Section 98). But an application can include use before 2001 to qualify for the 20-year period.

Statutory closure

Don’t include any periods of statutory closure of the land when you’re considering whether the land has been used for 20 years. Statutory closure is access to the land being temporarily forbidden by a local authority or the government. For example, if the land was closed for 6 months during the foot-and-mouth outbreak, applicants will need to show that land has been used over a period of 20 years and 6 months.

Permission granted after 20 years’ use

If a landowner gives their permission to use the land after there has already been 20 years’ use, you must ignore this. The applicants can say in their application that use continues to be as of right at the date of the application. This only applies to a permission that was granted on or after 6 April 2007.

Further information

This guidance relates to Part 1 of the Commons Act 2006 and The Commons Registration (England) Regulations 2014.

The Association of Commons Registration Authorities supports commons registration officers and staff whose work includes common land and town and village greens.

Published 17 November 2015
Last updated 18 November 2015 + show all updates

  1. Added link to original guidance document.

  2. First published.

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