How to set up a commons council to manage common land.
Common land is land owned by one or more persons where other people, known as commoners, are entitled to use the land or take resources from it.
Commons councils are statutory groups (groups established by law) which manage and protect common land.
In most cases, you won’t need to set up a commons council - you can manage common land by setting up a voluntary group.
Voluntary groups have no legal powers, whereas a commons council can make legally binding rules about how people use the land it’s responsible for.
These legally binding rules can help if commoners, landowners and other stakeholders can’t agree about how to manage the land.
What commons councils do
A commons council can manage one area of land or several different areas.
They’re run by council members who are appointed or elected by people who have an interest in the land, eg commoners or landowners.
Commons council members vote to decide how to run the common land they’re responsible for and can make legally binding rules that control:
- agriculture and vegetation on the land
- how commoners exercise their rights of common on the land - eg which months they can have animals grazing and how many animals can graze
- leasing, licensing and transfer of rights of common - eg the council can temporarily take control of unused rights of common and transfer them to someone else
Commons councils can also:
- set up a grazing register to keep track of how many animals are on the common and who owns them
- set up and maintain boundaries, eg walls, fences or cattle grids - find out more about carrying out works on common land
- remove any unlawful boundaries
- remove animals that are grazing illegally - ie their owner doesn’t have a right of common on the land
- buy rights of common from existing commoners
Rules commons councils can’t make
Commons councils can’t make rules that:
- override the normal need for landowners’ consent for any activities that aren’t rights of common
- would regulate anything that’s already illegal, eg using motor vehicles on common land
Before you apply
You need to decide what role you want the council to have and discuss your proposal with local people. The Department for the Environment and Rural Affairs (Defra) won’t consider your proposal if you haven’t got substantial support for it.
- Develop your proposal – you’ll need to decide what powers and functions you want the council to have.
- Hold a consultation to tell people in the area about your proposal – how you do this is up to you.
- Organise a vote – you need a large majority of voters to support your plan to create a council.
You can use the following example orders to help you develop your proposal and explain to other people what powers and functions the council would have:
Apply to set up a commons council
Your proposal should explain why you want to set up the commons council.
You’ll need to provide details of:
- the common including location, size, topographical information and map
- any unique or rare features, including flora, fauna, archaeology
- the number of rights holders and the rights they hold
- the owners and other land managers (eg National Park Authority)
- whether the land is subject to any agri-environment agreements
- whether the land is subject to any type of land designation (eg Site of Special Scientific Interest, Less Favoured Area, National Park)
- whether the land is subject to any statutory regulation (eg scheme of management, scheme of regulation under the Commons Act 1899 or an order of regulation under the Commons Act 1876 or regulation under the Commons Act 1908)
- the current management structure (eg association, Board of Conservators), including number of active and inactive graziers
- any current management problems (eg over-stocking, fly ponies)
- whether a live register exists - a live register records the current active and inactive grazing on the commons which isn’t the same as the register held by the commons registration authority
- who you consulted - this should include commoners, landowners and any others with a legal interest, plus any organisations the council will deal with, eg National Park Authority, Natural England
- what questions you asked in your consultation, and what answers you got
- the result of the last vote you held - you don’t need to give results from any earlier rounds of voting
Information on your proposed council
You need to provide the following details:
- who’ll be part of your common council, including the number of people representing each of the main interests, eg active graziers, non-graziers and landowners
- an explanation of the public benefits of setting up a commons council
- what functions and powers you want the commons council to have
- how you’ll finance the running of the commons council
- a description of the relationship between your proposed council and existing management arrangements on the common you want it to manage
Liaison person details
You must also include the names of the people who will be the:
- liaison person for your proposed council - and proof that there’s enough funding for their work
- returning officer and oversee your first elections
Send your proposal
Email firstname.lastname@example.org or send your proposal for seeking an establishment order to:
Commons, Access and Inland Waterways Team
Nobel House, 1E
17 Smith Square
After you apply
The Secretary of State will:
- review your proposal and any rules you want to make and consider whether to make an establishment order to create your commons council
- if relevant, they’ll publish the draft establishment order on citizen space, a website used by government bodies to seek citizens’ views
Anyone can respond to a draft order but the Secretary of State will particularly consider responses from people who have a legal interest in the land, including commoners or landowners.
In rare cases, the Secretary of State may also hold a public inquiry, for example if there’s major opposition to a draft order.
The establishment order made by the Secretary of State will set out out how you must run your commons council.
- who’s eligible to become a participant
- the size and constitution of the council
- the term of office that council members will hold - the maximum is 4 years
- how council members can resign or renew membership and how to fill vacancies- eg with by-elections
- how you must appoint a chairperson, secretary, treasurer or other officers
- how to call meetings and whether they should be public or have a public agenda
- how to make, amend or revoke standing orders - eg where you meet and how often
- how to appoint committees or individuals to carry out council functions
Funding your commons council
Your commons council can raise the money it needs to operate by:
- charging participants a subscription fee
- applying for funding, eg from the Heritage Lottery, the EU or other sources
Electing council members
Your establishment order will set out the categories of voter in your commons council, for example:
- active graziers - people exercising animal grazing rights on the common
- other commoners - people who have a right to graze but choose not to or whose right is not to do with grazing
Each category elects or appoints people to represent them.
For example, active graziers and other commoners vote for their own representatives and can’t vote in any other category, while landowners usually appoint their representative.
A returning officer will arrange your first election and appointments.
For all subsequent elections, you must appoint your own returning officer.
The returning officer will make a list of people who can vote to elect council members - in commons councils these people are known as participants.
A participant is one of the following:
- a commoner
- a landowner or tenant
- anyone else with a legal interest in the land the council is responsible for, eg a club with sporting rights
Appointing non-voting council members
Establishment orders can allow commons councils to appoint non-voting members, eg to make sure an interest is represented or to add an expert to the council.
These experts are known as co-optees.
Commons councils can appoint committees to carry out council functions.
A commons council can employ staff to carry out any of its functions, eg people who enforce grazing rules on the land, known as ‘reeves’.
Your commons council can only hire contractors or other groups to do tasks that help the council to fulfil its main functions.
You can’t delegate all the duties of the commons council to a contractor or another group.
You must hold a vote to make any decisions about running the common.
Each commons council member gets one vote.
If a vote is tied, the chairperson gets a second vote to decide the matter.
Your council can decide how many council members must be present for a valid vote to take place.
Some decisions need a two-thirds majority to be carried, eg making or changing rules - your establishment order will state which type of decisions need this majority.
Your chairperson can decide whether to allow absent members to nominate someone else to vote for them, and how this process should work.
All commons council rules must be approved by the Secretary of State.
Your commons council must publish any draft rules on its website and invite comments before you send them to the Secretary of State.
When you’ve done this, email email@example.com the details of the proposed new rule and any comments you’ve received, or post them to:
Commons, Access and Inland Waterways Team
Nobel House, 1E
17 Smith Square
Publicising approved rules
If the Secretary of State approves your rule, you must send a copy of the rule to the following groups 14 days before it comes into force:
- the local authority
- any commoners or their associations, parish councils or National Park authorities who the rule will affect
You must also publish details of new rules on your website, and give written notice to anyone else who’ll be affected by them, eg landowners.
If anyone breaks the rules set by your commons council, you can apply to the county court for a court order requiring someone to comply.
If your commons council has made it a criminal offence to break a rule, and this has been approved by the Secretary of State, you can prosecute offenders at a magistrates’ court.
Your commons council can remove any rule if council members vote to do so with a two-thirds majority.
The council must then send written notice to the following groups, 14 days before the rule ceases to exist:
- the Secretary of State
- the local authority
- any parish council or National Park authority in the same area as the common
- the commoners
You must also publicise that you’ve removed the rule, eg by announcing it on your website.
The Secretary of State can send your commons council a direction that means you must remove a rule - the direction will explain the reasons.
This happens rarely, and usually only in cases where new national legislation duplicates a rule.
Changing establishment orders
If you want to change the terms of your common’s council’s establishment order, you can contact the Secretary of State and ask them to issue a variation order.
You’ll need to show there’s substantial support for the changes you want to make from the participants in your council, or that they’re essential for the commons council to function.
The Secretary of State will publish details of the proposed variation order and invite public representations.
Annual general meetings
Your commons council must have an annual general meeting within 6 months of the end of each financial year.
You must tell all council participants about the meeting.
You can hold as many other meetings as you choose.
All commons council meetings must be open to the public. However, you can exclude the public for an agenda item if your council has voted to pass a resolution that deems that item confidential.
The council must present a financial report, a balance sheet and a statement of income and expenditure at each annual general meeting.
You must publish the minutes and agenda of your meetings on a commons council website.
You can exclude items if the council has passed a resolution deeming them confidential.
All commons councils must keep accounts.
You must have your council accounts independently examined if the gross annual income of your council is more than £10,000.
If the gross annual income is £250,000 or more, the person you hire to examine your accounts must be a member of one of the following bodies:
- Institute of Chartered Accountants in England and Wales
- Institute of Chartered Accountants of Scotland
- Institute of Chartered Accountants in Ireland
- Association of Chartered Certified Accountants
- Association of Authorised Public Accountants
- Association of Accounting Technicians
- Association of International Accountants
- Chartered Institute of Management Accountants
- Institute of Chartered Secretaries and Administrators
- Chartered Institute of Public Finance and Accountancy
You must show any member of the public your commons council’s accounts for the last 3 financial years if they ask to see them.
Closing a commons council
The Secretary of State can close a commons council as a last resort, if after consulting the council, they decide that it meets any of the following conditions:
- it has ceased to operate
- it has stopped fulfilling its function of managing and protecting the common
- it isn’t showing enough regard to the public interest
To do this, the Secretary of State will make a revocation order.
They’ll talk to your council to decide if enough council members support the winding up of the council
If a commons council can’t afford to pay its creditors, the Secretary of State can close it down and transfer its assets to another body.
If the council members don’t support closing the council, any assets it has, including future income, will be sold to pay creditors.
The commons council itself is liable for any debt it incurs, unless individual members make themselves personally responsible to a bank or other lender.