Guidance

Common land: management, protection and registering to use

Guidance on the management and protection of common land in relation to the Commons Act 2006.

Overview

There are around 550,000 hectares of registered common land in England and Wales - 4% of the total land area in England and Wales. The Commons Act 2006 aims to protect these areas of common land, in a sustainable manner delivering benefits for farming, public access and biodiversity:

  • the act enables commons to be managed more sustainably by commoners and landowners working together through commons councils with powers to regulate grazing and other agricultural activities
  • it provides better protection for common land and greens - this includes reinforcing existing protections against abuse, encroachment and unauthorised development - it recognises that the protection of common land has to be proportionate to the harm caused and that some specified works can be carried out without the need for consent
  • part 1 of the act requires commons registration authorities to bring their registers up-to-date by recording past changes affecting the registers during a ‘transitional period’, and to keep the registers up-to-date by recording new changes affecting the registers - commons registration authorities will have new powers to correct many of the mistakes in the registers
  • the act sets out new, clearer criteria for the registration of town or village greens
  • the act prohibits the severance of common rights, preventing commoners from selling, leasing or letting their rights away from the property to which rights are attached

Implementation updates

The Common Land team sends out regular emails to all stakeholders, updating them on recent implementation progresses. Read the latest implementation update here:

Commencement orders

Most provisions of the Commons Act 2006 (sections 1-8 and 10-53, and Schedules 2-6) are to be brought into force by order made by the Secretary of State in relation to England, or by the National Assembly for Wales in relation to Wales.

  • Commencement order no. 6 brings into force consequential amendments in Schedule 5 to the Commons Act 2006, which relate to the implementation of Part 1 of the act
  • Commencement order no. 1 (England and Wales) brings into force certain repeals in the Commons Act 2006 as regards the Commons Registration Act 1965, so as to abolish the system of provisional registration, and the determination of provisional registrations by the Commons Commissioners - the commencement order also abolishes the office of the Commons Commissioners, by repealing provision for the Commissioners in the 1965 Act
  • Commencement order no. 5 brings into force Part 2 of the act which provides for the establishment of commons councils, their status and constitution, and their functions, together with supplementary provisions
  • Commencement order no. 4 brings into force Part 1 of the act in relation to 7 pilot registration authority areas in England, together with section 46 of the Act throughout England, with effect from 1 October 2008
  • Commencement order no. 3 brings into force sections 16 and 17 and part 3 of the act, and other ancillary provisions, with effect from 1 October 2007
  • Commencement order no. 2 brings into force sections 4, 5, 15 and 24 of the Act, and other ancillary provisions.
  • Commencement order no. 1 brings into force a partial repeal of section 13(a) of the Commons Registration Act 1965, sections 45, 51 and paragraph 6 of schedule 4 of the act

Database of registered common land in England

A database of registered common land in England is available:

National common land stakeholder group

The National Common Land Stakeholder Group advises Defra on matters relating to the management of commons and particularly on the implementation of the Commons Act.

Commons councils

Commons councils are democratic structures through which commoners, land owners and others with an interest in a common can work together to better manage agricultural activities, vegetation and the exercise of common rights on the land.

Natural England has published guidance on their website for those who want to set up a commons council. Further technical guidance is available below for those who wish to put together a proposal for the Secretary of State’s consideration. However, those drawing up a proposal are advised to talk to Natural England as a first step.

Unauthorised agricultural activities

Section 46 of the Commons Act 2006 enables Natural England to stop unauthorised agricultural activities on registered common land or certain greens, which are detrimental either to the commoners’ or landowners’ interests, or to the public interest. Defra has published guidance (PDF, 65.3KB, 2 pages) to Natural England on the appropriate use of its powers.

Severance

The Commons Act prohibits the severance of common rights, preventing commoners from selling, leasing or letting their rights away from the property to which rights are attached.

Special provision has been made in relation to severance on Dartmoor:

Temporary letting of rights of common

An order has been made allowing the short term leasing or letting of rights (up to 2 years) in England. No particular steps need be taken to make a short-term lease of rights, but the lease must not be for more than 2 years, and must be in writing.

Environmental stewardship and common land

Environmental Stewardship is an agri-environment scheme that provides funding to farmers and other land managers in England who deliver effective environmental management on their land, including common land. The Higher Level Environmental Stewardship scheme is particularly suited to applications from those engaged in agricultural activity on common land. For further information on Environmental Stewardship, including the Supplement to the ELS Handbook for common land, see: Environmental Stewardship Schemes

Byelaw making powers

Local authorities have powers under various acts of Parliament to make byelaws on common land that create criminal offences. Defra has guidance notes and model byelaws to assist local authorities in this process:

Protection of common land

Commons are vulnerable to abuse, encroachment and unauthorised development, chiefly because of their low value to the owner of the common, and because no one person has a dominant interest in its protection. The Commons Act 2006 introduces new, clearer measures for protecting common land from unlawful works and encroachment.

Consents to works on common land

The Planning Inspectorate has responsibility for determining applications for statutory consents in relation to common land and town or village greens. Consent is generally needed from the Secretary of State for any restricted works on registered common land. Restricted works are those which prevent or impede access to or over the land, which might include erecting fencing, constructing buildings, digging ditches, but also includes the resurfacing of land with tarmac and similar materials.

  • Defra has published policy guidance (PDF, 273KB, 11 pages) (July 2009) in relation to granting these statutory consents - the guidance should be read in conjunction with the Commons Act 2006, and with the guidance published by the Planning Inspectorate
  • a letter (PDF, 190KB, 2 pages) from the Parliamentary Under-Secretary to Craig Whittaker MP, explaining how the policy guidance applies in the context of projects for sustainable energy generation
  • Defra commends the consensual approach to works on common land set out in A common purpose, which has been endorsed by the National Common Land Stakeholder Group

Under section 16 of the Commons Act 2006, owners of registered common land or town or village greens can apply to have the land released from registration. If the ‘release land’ is more than 200 square metres in area, they must make an application at the same time to register ‘replacement land’ as common land or green in its place. If the release land is smaller than 200 square metres, a proposal to register replacement land may (but need not) be included. Further information is available from the Planning Inspectorate.

Relevant legislation

  • Commons Act 1876 - some 36 commons in England and Wales are regulated (PDF, 49.5KB, 10 pages) under the Commons Act 1876 - the Commons Act 1876 also enabled the confirmation of Orders providing for the inclosure of common land or common fields, and the table (PDF, 14.4KB, 3 pages) sets out details of the orders confirmed
  • Commons Act 1899 - provides a mechanism of enabling district councils and National Park authorities to manage commons where their use for exercise and recreation is the prime consideration and where the owner and commoners do not require a direct voice in the management, or where the owner cannot be found. There are at least 200 schemes of management made under the 1899 act

Integral publications and documents

Commons registration

Part 1 of the Commons Act 2006 requires commons registration authorities to update the commons registers to take account of events affecting the registers since the 1970s which have not been recorded. Any future events affecting the registers will only be effective in law upon an application to make the necessary amendment to the registers.

Find out below about the pioneer implementation of Part 1 of the Commons Act 2006.  Information is also available about commons registration authorities’ functions under the Commons Registration Act 1965 (which continues to apply outside the pilot areas), including Defra’s updates to registration authorities.

Pioneer implementation of Part 1 of the Commons Act 2006

In England, implementation of the registration provisions in Part 1 of the Act was pioneered from 1 October 2008 in 7 commons registration authorities: Devon, Kent (but not including unitary authorities in these first 2 counties), Cornwall, Hertfordshire, Herefordshire, Lancashire (but not Blackpool), and Blackburn with Darwen.  

Due to the Red Tape Challenge, Defra committed to fully commence Part 1 of the 2006 Act throughout England. It was announced on 9 January 2014 that Part 1 would be implemented in Cumbria and North Yorkshire in October 2014. We will also commence section 19(2)(a) and paras 6-9 of Schedule 2 of the 2006 Act throughout England to allow respectively for the correction of mistakes made by the authority and the removal of wrongly registered land. These types of applications can be submitted from October 2014.

Full commencement of Part 1 in the other areas will be reconsidered when resources permit, which will probably be during the next Parliament (2015) at the earliest.

Pioneer documents including guidance and statutory instruments

Further information

The websites for the Open Spaces Society and Commons Reregistration provide further information about applications under the pilot implementation of Part 1 of the Commons Act 2006. Defra is not responsible for information contained in those websites.

Registration authorities’ functions

Commons Registration Authorities are charged with administering the registration of common land and town and village greens under the Commons Registration Act 1965 outside the pioneer areas.

The Commons Registration (Amendment and Miscellaneous Revocations) Regulations 2010 substantially revoke many of the regulations made under the 1965 Act, and further information about these changes is available in the Explanatory Memorandum

The Regulations also amend the notes to the following forms contained in Schedule 1 to the General Regulations: form 16 (Application for a note to be made in a register: General Regulation 24), form 17 (Application for the removal of land from a register: s.13(a) of the 1965 Act and General Regulation 27) and form 19 (Application for the amendment of a register in relation to a right of common: s.13(c) of the 1965 Act and General Regulation 29): revised notes are available (PDF, 135KB, 7 pages) ).

Updates to Commons Registration Officers

The Common Land team sends emails to all commons registration officers (CROs) in England from time to time, updating them on recent changes affecting their responsibilities under the Commons Act 2006 and the Commons Registration Act 1965.

Association of Commons Registration Authorities for England and Wales (ACRAEW)

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

Commons Commissioners’ decisions

Most decisions of the Commons Commissioners, issued since 1972, relating to the registration and ownership of common land and town or village greens under the Commons Registration Act 1965, are available to download on the website of the Association of Commons Registration Authorities mentioned above.

Project to establish ownership of rights of common - Bampton Common, Cumbria

Defra commissioned Capita Symonds to carry out a pilot study to define a methodology to identify the ownership of rights recorded in the rights section of the common land registers which were compiled under the Commons Registration Act 1965. The final report sets out the principal findings of the study which concentrated on Bampton Common in Cumbria.

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