Common and Pasture
| Author | Christopher Jessel |
| Pages | 177-202 |
Chapter 10
Common and Pasture
pastures, feedings, wastes, warrens, commons
10.1 COMMON LAND
Across England there are thousands of acres of open land of rough grass which do not form part of any farm and which are subject to a variety of rights enjoyed by people other than the owner. These are the commons of England. They are valued now for conservation and public access but most are still important for the agriculture of nearby farms. Many still belong to the lord of the manor. In times past nearly all did.
The word ‘common’ is often used in non-legal contexts to refer to common land that is land subject to rights of common; but in many of the older cases, and in the Law of Property Act 1925, s 62(3), ‘a common’ means a right of common, an incorporeal hereditament. The right had to subsist at common law. Rights of common are rights of freehold tenants or other freeholders against the lord, or of one lord against another. Similar rights appurtenant to copyhold land and therefore exercised over the lord’s freehold by virtue of custom were customary rights not common and were called commonable. ‘Feedings’ has a wide meaning but can include certain rights of a lord against his tenants. ‘Warrens’ in this context are the right of the lord to construct and maintain a warren, usually for rabbits, but now they have become a naturalised pest and the right is obsolete. A different, more important meaning of ‘warren’ is considered in 12.3.
There is no single statutory definition of common land but the Inclosure Act 1845, s 11 sets out lands liable to be inclosed:
1 For the material in this chapter, see Gadsden, GD, The Law of Commons (Sweet & Maxwell,
1988), described by Lord Templeman in Hampshire County Council v Milburn as ‘the excellent book’.See also Report of the Royal Commission on Common Land, Cmnd 462 (1958). Although the law of Wales is broadly the same as that of England the rules stated here apply with modifications in the Principality.
178 The Law of the Manor
All such lands as are herein-after mentioned, (that is to say,) all lands subject to any rights of common whatsoever, and whether such rights may be exercised or enjoyed at all times, or may be exercised or enjoyed only during limited times, seasons, or periods, or be subject to any suspension or restriction whatsoever in respect of the time of the enjoyment thereof; all gated and stinted pastures in which the property of the soil or of some part thereof is in the owners of the cattle gates or other gates or stints, or any of them; and also all gated and stinted pastures in which no part of the property of the soil is in the owners of the cattle gates or other gates or stints, or any of them; all land held, occupied, or used in common, either at all times or during any time or season, or periodically, and either for all purposes or for any limited purpose, and whether the separate parcels of the several owners of the soil shall or shall not be known by metes or bounds or otherwise distinguishable; all land in which the property or right of or to the vesture or herbage, or any part thereof, during the whole or any part of the year, or the property or right of or to the wood or underwood growing and to grow thereon, is separated from the property of the soil; and all lot meadows and other lands the occupation or enjoyment of the separate lots or parcels of which is subject to interchange among the respective owners in any known course of rotation or otherwise, shall be land subject to be inclosed under this Act.
While rights of common can subsist over any land, in practice they related primarily to waste of the manor and secondarily to a minority of open fields. Typically the freehold in waste belonged to the lord. The freehold in strips in open fields might belong to him or to some other person and other neighbouring landowners had either a right or an accepted practice of grazing their beasts on the land.
For most contemporary purposes ‘common land’ can be taken to have the meaning in the Commons Registration Act 1965, s 22, that is land subject to rights of common and waste land of a manor not so subject (see 6.3). It follows that there can be land comprised in the s 11 of the 1845 Act definition which is not within the 1965 Act. Once land had been registered under the 1965 Act its definition did not need to be repeated and, accordingly, the Commons Act 2006 refers to registered common land as existing, although it includes provisions for additional registration and deregistration. However, para 7 of Sch 2 to the Commons Act 2006, which provides that land wrongly registered, of which there was a great deal, may be removed from the register, states in para 7(2)(d)(iv) that land cannot be removed if it was land of a description specified in s 11 of the 1845 Act. It follows that even if it was not subject to rights of common or waste of a manor (nor a town or village green), for example if it was a lot meadow or subject to sole herbage, if registered it will remain on the register.
Under the Localism Act 2011, Chapter 3, Part 5 a local authority has to prepare a list of land of community value which, under s 88, ‘furthers the social wellbeing or social interests of the local community’ and under s 90 land may
also be nominated by a local person or body. If land is on the list then (subject to numerous exceptions, mostly but not exclusively referring to the land being inherited or kept within a family) the owner may not dispose of the land without giving local groups an opportunity to bid for it. Some common land and waste will be regarded as land of community value.
Much common land has no known owner. The possible identity of the current owner is considered in 6.9. In 2002 the Department for the Environment, Food and Rural Affairs estimated that some 1900 commons totalling some 4000 hectares (10,000 acres) in England had no known owners and in Wales 500 commons totalling 21,000 hectares (50,000 acres).
Registration under the 1965 and 2006 Acts differs from that under the Land Registration Act 2002 and its predecessor, the Land Registration Act 1925
(25.8). The 1965 Act included a provision
2 Department of the Environment, Food and Rural Affairs, Common Land Policy Statement (July
2002).
3 Commons Registration Act 1965, s 12.
4 Land Registration Act 1925, s 120(1).
5 Taken in from s 1(1)(a).
180 The Law of the Manor
The 2002 Act, s 27(2)(d) provides that while a grant of new profits must be registered against the title to the burdened land that does not apply to a new right of common. Such new grants will be rare but s 6 of the 2006 Act permits this. Correspondingly, s 33(d) of the 2002 Act provides that no notice of a right of common may be entered on the register of title. In Sch, 3 para 3 (which differs from the corresponding provision in Sch 1 in this case) it is provided that a legal profit is not overriding if it is not known, obvious or recently exercised but this does not apply to a profit registered under the 2006 Act. This means that a buyer of common land cannot exclude a registered commoner on such a ground.
10.2 BACKGROUND TO THE CURRENT LEGISLATION
The law of commons has been the subject of major changes in the twenty-first century. These changes were preceded by the Commons Registration Act 1965 which itself did not directly alter the law, but its implications were brought out by two statutes. First, public access to commons has now become as important as the grazing rights. In the Countryside and Rights of Way Act 2000 (‘the CROW Act’) Parliament conferred a public right to roam over common land. It is therefore worth outlining the preceding law on this and the principal issues in this chapter. Secondly, the Commons Act 2006 has both revised the registration procedures and created a new system of management for commons.
The effect of inclosure (3.4, 7.11–7.12), particularly by Act, was to convert most former common land to severalty and, by the late nineteenth century, only fragments remained, although they were still extensive. In the last...
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