Definition
Common Land
In general terms, common land is land owned by one person over which another person is entitled to exercise rights of common (such as grazing animals or cutting bracken for livestock bedding), and these rights are generally exercisable in common with others. However, in legal terms, the situation is inevitably more complex. There is no single definition of the term 'common land', or indeed of 'common' or 'common rights'. The Commons Registration Act 1965 introduced the first statutory definition of 'common land', but this is strictly relevant only for the purpose of deciding whether land was or was not eligible for registration under the Act. The Act stated that common land was "land subject to rights of common (as defined in [the] Act) whether those rights are exercisable at all times or only during limited periods; and waste land of a manor not subject to rights of common". Definitions of 'common' can also be found in various nineteenth century Acts of Parliament, such as section 3 of the Metropolitan Commons Act 1866, section 37 of the Commons Act 1876, and section 15 of the Commons Act 1899, but each of these was drawn up with a particular purpose in mind, and all of the definitions must be treated with caution when applied in a different context.
An alternative approach is to consider the meaning of a right of common. Halsbury’s The Laws of England reports the definition in Cooke’s Inclosure Acts (4th Edn) as: “A right, which one or more persons may have, to take or use some portion of that which another man’s soil naturally produces”. Common land may then be defined as any land which is subject to such a right. However, this approach is less satisfactory today, when many areas of common land were in the past subject to such rights, but the rights have since been lost.
Perhaps the most transparent approach today is to consider common land to be all the land which was registered under the 1965 Act, and which is shown as such in the registers held by the commons registration authorities. However, this definition is seldom adopted in any legislation (an exception is liability for livestock on highways crossing common land in the Animals Act 1971). Furthermore, some common land was exempted from registration under the Act, and so is not registered as such, even though it is widely recognised as common land today. Exempted areas include the New Forest and Epping Forest, as well as a number of urban recreational commons.
Page last modified: 26
May 2006
Page published: 5 February 2003