Common Land is a remnant of the old manorial system which during the medieval period formed the basis for this country’s economy. Centred around the Lord’s Manor House the countryside was divided into the demesne (the Lords land), open fields (cultivated strips) and the waste (poorest unenclosed pasture).
As part of this administrative system rights of common were exercised by the peasantry over the ‘open fields’ and ‘waste’ taking produce in common with the landowner. Amongst the rights practised and still recognised today were
- Common of pasture – a right to graze livestock (cattle, sheep & ponies)
- Common of estovers – a right to take underwood, loppings, braken & furze
- Common of turbary – a right to cut turf (peat) for fuel
- Common of piscary – a right to take fish from lakes or streams
- Common in the soil – a right to take sand, gravel, stone or minerals
- Common in pannage – a right to graze pigs on acorns & beech mast
The whole system was governed by court leets and a set of detailed and ancient laws which are still alive and in use today.
Common land came under a great deal of pressure from the late middle ages until the turn of the nineteenth century. The breakdown of the manorial system, improvements in agriculture and a growing population encouraged the widespread enclosure of commons and the loss of ‘rights’. This process of ‘approvement’ was hastened by the General Inclosure Acts resulting in the demise of most of our lowland commons. Today the largest remaining areas were formerly the waste of the manors representing the backbone of our upland landscape.
During the late nineteenth century widespread concern was expressed at the rate of enclosure particularly in our Urban or Metropolitan areas. The government responded to the public mood by moving away from approvement’ towards a climate of preservation. This was subsequently transpired into Acts of Parliament to prevent the loss of common land and forms the basis of today’s legislative framework.
Following the Second World War the government decided to look in detail at the role of common land and set up a Royal Commission (R.C.) in 1955 with a remit to deliver a vision for the future. The Commissions final report contained proposals to register the resource and recommended a second stage of legislation to provide a frame work for management and public access.
The 1965 Commons Registration Act (CRA)
The 1965 Commons Registration Act followed the R.C. and recorded for the first time all the common land in England and Wales. It also noted land ownership details, the names and addresses of the commoners plus a quantification of the nature and extent of their rights. The process was administered by the County Councils who collated the information and entered them onto maps and into the registers. Upon completion of the procedure these legal documents became final and binding.
Regrettably the procedure for registration was flawed and has resulted in a host of problems which still ‘haunt’ our commons today. Amongst the most significant are:
Incorrect registration – the process relied on objections to discount unsubstantiated registrations which otherwise became final. The registration authority was not obliged to contact landowners or users and therefore many legitimate interests were not registered. This was compounded by the short length of the registration period, clerical errors and poorly drawn common land maps.
Over Quantification of Grazing Rights – this occurred where rights were clearly and lawfully in existence at the time of registration but the numbers of stock claimed was far in excess of the carrying capacity of the land. A typical problem which arose was the registration of rights on contiguous areas of land ie: where commoners duplicated rights for two parishes which shared a common.
Validity of Registers – although the R.C intended that registers should be maintained regrettably this has not been the case. Today they represent a ‘Doomesday’ record based on land ownership and use at the time of registration.
Severance of Rights – Section 15 of the act provided for rights of severance to be registered by the authorities allowing individuals whose land is unconnected with a common to graze livestock. This remains a bone of contention and current legal action is likely to determine shortly if this practice is permissable.
The second stage legislation promised by the R.C. has not followed the 1965 CRA despite numerous promises from both Conservative and Labour governments. The wider issues of management and access to commons largely remain unresolved although impending legislation may address this.