How to know if land is common land, commoner and landowner rights over the land, and the groups you can set up to manage it.
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.
Visit your local authority premises and check the commons register to find out:
- who can use common land and what they can use it for - this is called rights of common
- where there’s common land in your area
- who’s the owner of the common land (at the time the register was made, in 1970)
You can also check the database of registered common land in England.
The right of a commoner to take resources from a piece of common land is called a right of common.
A right of common can be:
- pasturage - the right to put livestock out to feed on the land, usually grass but can be heather or other vegetation
- pannage - the right to put pigs out to feed in wooded areas of the land
- estover - the right to take specific timber products from the land, like whole trees or firewood
- turbary - the right to take turf or peat from the land to burn as fuel
- piscary - the right to take fish from ponds, lakes, rivers and streams
- rights in the soil - the right to take soil or minerals from the common
- animals ferae naturae - the right to take wild animals
Commoners can only take enough turf, peat, fish, soil or minerals for the property to which their right of common is attached.
You have to follow different rules for selling or letting rights of common depending on whether the rights are attached to the land, or not attached to the land.
Selling or leasing rights that are attached to the land
You can only sell rights that are attached to the land by selling them with the land itself, unless you’re selling or transferring them to either:
If you’re leasing out rights that are attached to the land, you can only use the same lease for up to 2 years.
After 2 years you must make a new lease - even if you’re leasing it out to the same person under the same terms.
Selling or leasing rights that aren’t attached to the land
Rights that aren’t attached to the land are known as ‘rights in gross’. They are deeds.
You can sell or lease rights in gross to anyone in the same way as any other property.
If you own a common, you can use the land and take resources from it provided this doesn’t interfere with someone’s ability to exercise their rights of common, or make it more difficult for them to do so.
For example, if a commoner had grazing rights on your land, you couldn’t build houses on the land because it would reduce the amount of grazing land.
If you own a common you can take action to stop anyone, including commoners, from exceeding their rights, for example by:
- grazing more livestock than they have rights to do so, or turning out livestock for which they have no rights
- exceeding their right of turbary by selling timber or wood taken from the common
Talk to your legal adviser to find out how to take action.
Natural England can 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.
Letting landowner rights
If you own a common, you can lease any surplus capacity of the common beyond that taken by the rights of common. You can also lease land to which rights are attached.
Public access rights
The public have the right to access registered common land - find out how landowners and local authorities can manage public access to common land.
Landowners should check which public access rights apply to their common.
Carrying out works
Find out how to carry out works on common land.
How local authorities can manage commons
Under the 1876 Commons Act
Under the 1899 Commons Act
Under this act, local authorities can choose to manage common land that has no registered owner by making schemes - these schemes may include enforceable byelaws.
They can create rules themselves or delegate management to a local council, eg a parish council.
The scheme and byelaws can be vetoed by the owner of the common or by persons representing one third in value of interests of the commoners.
Any common that’s managed under the 1899 act must allow locals free access and the right to play sport on the land.
Any management or improvement a local authority carries out must be:
- in the public interest
- to conserve nature, the landscape or archaeology
- to protect access rights
Under local acts
In some areas, common land has been created by specific acts - this means there are unique laws for how the local authority can manage it.
How commoners and landowners can manage commons
Commoners and landowners can set up a commons council to manage commons.
Commons councils are statutory groups - this means they’re recognised by law, and can make legally binding rules for how people use the common land.
Commoners and landowners can also set up voluntary groups called commons associations.
Commons associations usually have no legal power and rely on their members to agree about how the common should be managed.
They can sign legally binding agreement or guarantees, like an agri-environment agreement, if all members agree.
The agreement or guarantee can set out how members must treat the common.
Allowing vehicles on common land
It’s an offence to drive a vehicle onto common land unless:
- the driver intends to park it within 15 yards of a public road
- the driver has permission from the landowner
In some circumstances, people who have to drive across a common to access their property may have a right to do so.
Find out more about allowing vehicles to access common land.
The landowner can set conditions that allow someone to drive vehicles onto the common land, eg to manage livestock.
Adverse possession is a way for someone who has been managing property for a given amount of time to claim legal ownership of it.
A local authority can sometimes claim ownership of common land under adverse possession.
They’d need to show evidence of positive management of the land for 12 years.
Find out more about adverse possession.
Talk to your legal adviser if you want to claim ownership of common land via adverse possession.
Basic payment scheme claimants
If you claim agricultural payments under the basic payment scheme, you must follow Cross Compliance guidance for 2015.
There are specific rules on common land if you are claiming direct payments.
You must follow these rules on any common land where you have common land rights, not just the land you’re claiming payments on.
If you enter your common into an agri-environment scheme there are special rules for commons.