Frequently asked questions
The advice here relates to the position now in advance of changes implemented by the Commons Act 2006, insofar as some relevant provisions will be brought into force at a future date..
Question 1 - Doesn't common land belong to everyone?
Question 2 - Are the Commons Commissioners in overall charge of all common land?
Question 3 - Is there public access to common land?
Question 6 - Does section 194 of the Law of Property Act 1925 apply to metropolitan commons?
Question 7 - Who keeps common land and town/village green registers?
Question 8 - How do I register land as common land or town/village green?
1. Doesn't common land belong to everyone?
Answer - Most common land is privately owned. It is a popular misconception that common land belongs to everyone. This is not so. The term "common land" derives from the fact that certain people hold or held rights of common over the land. The different types of rights of common signified different entitlements to the product of the soil of the common, eg to the pasture, to sand and gravel or to peat. However, significant areas of common land are owned by the Government (for example, for military training) or other public sector organisations (such as the Public Trustee, local and National Park authorities).
2. Are the Commons Commissioners in overall charge of all common land?
Answer - No. Common land is essentially the same as any other privately owned land but is subject to the rights of commoners and to special statutory protection. The Commons Commissioners have powers only to deal with specific registration issues arising on the original provisional registrations made under the Commons Registration Act 1965 between 1967 and 1970 (of which a few remain outstanding for determination). They have no jurisdiction over registrations made since 1970.
3. Is there public access to common land?
Answer - There is a statutory right of access on foot to nearly all registered common land, notably under Part I of the Countryside and Rights of Way Act 2000. In some areas, restrictions on the new right of access may be necessary to protect the interests of land management or wildlife. Access under the 2000 Act is also subject to exceptions: for example, it does not apply to golf courses, racecourses or airfields, even where these are common land. Further information about the new statutory right of access is available from the Countryside and Rights of Way Act 2000: access to open country page.
The 2000 Act does not affect existing rights of access to common land: about one-fifth of common land is subject to such rights. The public enjoys the right of access for air and exercise to metropolitan and so called 'urban' commons under section 193 of the Law of Property Act 1925, but this does not apply to most rural commons. Where a right of access does not apply automatically, the owner of a common is able voluntarily to grant the same rights of access by deed, and a number of such deeds have been made (copies are generally available for reference in the National Archives). Some commons are also subject to rights of access under orders and schemes of regulation made under the Commons Acts of 1876 and 1899 respectively.
4. I want to undertake works on common land or town/village green: are there any procedures I should follow?
Answer - Under section 194 of the Law of Property Act 1925 the erection of any building or fence, or the construction of any work, which prevents or impedes access to land which was subject to rights of common on 1 January 1926, is unlawful unless the consent of the Secretary of State is obtained. Procedure notes are available: please see our advice page on Secretary of State Approvals / Consents.
5. Works are being unlawfully carried out on common land or town/village green - what can be done?
Answer - Section 194(2) of the Law of Property Act 1925, as amended by
paragraph 6 of Schedule 4 to the Commons Act 2006, provides that any
person, including a local authority or corporate body, is able to make
an application to the county court for an order to secure the removal
of work unlawfully carried out on land subject to rights of common on
1 January 1926, and the restoration of the land to the condition in which
it was before the work was carried out. The right for any person
to apply to the court, which was introduced by the 2006 Act, applies
only to works which were constructed on or after 28 June 2005.
Village greens are also afforded protection under section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876. Section 12 protects greens from injury or damage and interruption to their use or enjoyment as a place for exercise and recreation; and section 29 makes encroachment or inclosure of a green, and interference with or occupation of the soil, unlawful unless it is with the aim of improving the enjoyment of the green.
Action in respect of section 12 can be brought by a 'churchwarden, overseer of the parish or the owner of the soil' although this phrase has been amended by section 189(3) of the Local Government Act 1972 to include parish councils, parish meetings, community councils or in the absence of any of the above district councils. Any inhabitant of the parish may bring an action under section 29.
Under the Commons Act 1899, a common or a green may be made subject to a scheme of management in accordance with the Commons (Schemes) Regulations 1982. Where this has been done by a district council, in addition to the power to make byelaws and other provisions in the scheme, there is generally also a duty on the council to maintain the land free from encroachments.
Similarly, the National Trust is (by virtue of section 29 of the National Trust Act 1907), under a duty to “prevent resist and abate all enclosures and encroachments upon” common land in its ownership.
6. Does section 194 of the Law of Property Act
1925 apply to metropolitan commons?
Answer - Generally, no. Section 5 of the Metropolitan Commons Act 1866 applies to all metropolitan commons. That section prohibits the Secretary of State from entertaining an application for the inclosure of any part of a metropolitan common, eg under the provisions of section 194 of the Law of Property Act 1925. However, article 12 of the Order scheduled to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 enables the Secretary of State to consider an application for consent to the erection of any building or structure in the exercise of powers conferred (on local authorities only in Greater London) by articles 7 and 8. The Secretary of State is also able to consider applications for consent to works under article 17.
7. Who keeps common land and town/village green registers?
Answer - county councils, metropolitan borough councils and unitary authorities are charged with keeping common land and town and village green registers. These are known as the commons registration authorities and the registers they hold are required to be open to the public for inspection.
8. How do I register land as common land or town/village
green?
Answer - There are certain procedures to be followed when making an application
to register land as common land or town/village green and an applicant
needs to ensure that sufficient supporting evidence is provided to satisfy
the commons registration authority. Different criteria apply to the two
types of land (see Definitions). Registration of new land is carried out
by the registration authorities — the Secretary of State has no part
to play in it. See the information about new
town or village greens.
9. Who is responsible for applying to amend the registers when an exchange of land takes place?
Answer - The legislation provides that the owner of land that has ceased to be common or green because it has been taken in exchange for other land given in its place can apply to de-register the taken land. This is a discretionary provision rather than a mandatory requirement, but Defra strongly encourages registration. However, the registration authority cannot de-register the taken land until the given or substituted land has first been registered as new common or green. Any person may apply to register the given land as new common or green. Where this happens, if the registration authority is satisfied that it has sufficient information and both pieces of land are in the same register, the authority can amend the register in respect of the taken land even if the owner of it has not made a separate application to de-register it.
10. There was an important court case in Oxford which looked at registering
land as village green, what was the outcome?
Answer - In 2006, the Trap Grounds case (Oxfordshire County Council v Oxford City Council and Robinson [2006]), was heard by the House of Lords, who considered a number of procedural questions about the registration of greens and helpfully clarified some important aspects of greens law. The case concerned a disputed application to register land in Oxfordshire and the courts originally ruled that an application had to immediately follow the landowners challenge to the public’s use of the land. The ruling also concluded that registration authorities can exercise discretion in registering only part of the area of land claimed if only that part meets the registration criteria. Section 15 of the 2006 Act now provides a period of grace, if use ‘as of right’ is challenged, during which an application to register can still be made. See the information about new town or village greens.
11. There was a case in January
2002 about the meaning of the words "significant number" in
the new definition of town and village greens - what was this?
Answer - In the Queen's Bench Division of the High Court judgement was
given on 17 January 2002 in the case of The Queen on the Application
of Alfred McAlpine Homes Limited v Staffordshire County Council. Mr Justice Sullivan concluded that in considering
the words "significant number of the inhabitants" in section
22(1A) of the Commons Registration Act 1965, "what matters is that
the number of people using the land signifies that it is in general use
by the local community for informal recreation, rather than occasional
use by individuals as trespassers." Earlier he said "I do not
accept the proposition that significant in the context of section 22(1)
as amended means a considerable or a substantial number. A neighbourhood
may have a very limited population and a significant number of the inhabitants
of such a neighbourhood might not be so great as to be properly described
as a considerable or a substantial number."
12. What was the case that looked at the issue of ’as of right’ use of a green by the public for lawful sports and pastimes?
Answer - In 1999, the "Sunningwell" case (R v Oxfordshire County Council and Oxfordshire Diocesan Board of Finance Ex parte Sunningwell Parish Council), helped clarify a number of aspects of the law with regard to registering land on the basis of 20 years' use by local inhabitants for lawful sports and pastimes. The general outcome of the case was that:
(a)it is not necessary to establish whether or not the users believe they have a legal right to use the land: what is necessary is that the use should have been open and without force, as in the manner of a person who had a rightful entitlement to do so;
(b) good natured tolerance by a landowner of recreational use in the past supports rather than prevents registration, so long as use has not relied on express permission from the owner;
(c) some use by people from further afield is not fatal to an application and proof that use is predominantly by the local inhabitants is sufficient; and
(d) the words "sports and pastimes" amount to a single composite description for various activities, the important point being that the activities relied upon to justify registration must be attributable to either or both of these categories - the activities which may create modern village greens include informal recreation such as walking a dog and playing with children.
Further information
Page last modified:
26 February 2007
Page published: 5 February 2003