Planning Inspectorate Newsletter - Issue 7
Common Land and Town and Village Greens 
Like rights of way, which I wrote about in the last Newsletter, whole volumes could be (and have been) written about the history of common land, its use, problems and future. I will attempt to distil that in the following half-dozen paragraphs, along with an explanation of the Inspectorate’s involvement from 2007 onwards.
There are nearly 400,000 hectares of common land in England - about 3% of the total land area, or 1,540 square miles (with a further 175,000 hectares in Wales). There are also over 4,000 registered town or village greens, some of which are also subject to rights of common.
The origins of common land stretch back to the manorial system of land management and social governance introduced following the Norman conquest in 1066. This is reflected in the names of the ancient rights: for example, turbary (the right to cut turf or peat for use as a fuel), piscary (to fish), estovers (to cut wood, gorse or bracken for fuel, fencing or animal bedding), pannage (to graze pigs on beechmast and acorns). Traditionally, rights were classed as haybote (grazing), hedgebote (to take wood or thorns for the repair of fences) and housebote (to taken fallen, or sometimes lopped, wood for the domestic fire).
Common land is land normally owned by one person but others are entitled to exercise rights; the fact these rights are generally exercisable “in common” with others gives common land its name – not the popular misconception that “common land is owned by everyone”. There is now, however, a public right of access to most registered common land under the Countryside and Rights of Way Act 2000.
The Commons Registration Act 1965 introduced for the first time a national requirement to register common land, town or village green, and rights of common. But the 1965 Act had a number of deficiencies, not least the inability to deregister some wrongly registered land. Over the next 35 years a number of initiatives were pursued with limited success until the Rural White Paper of 2000 included a commitment to introduce new legislation. Hence the Commons Act 2006, which creates a statutory framework that will promote the interests of wildlife and the countryside as well as commoners, landowners, and anyone else enjoying common land.
Under section 38, consent is generally needed for any restricted works on registered common land. Restricted works are those which prevent or impede access to or over the land, which might include erecting fencing, constructing buildings, digging ditches or resurfacing of land with tarmac and similar materials.
Also, under section 16, owners of registered common land or town or village greens can apply to have the land released from registration. If the ‘release land’ is more than 200 square metres, they must make an application at the same time to register ‘replacement land’ as common land or green in its place. If the release land is smaller than 200 square metres, a proposal to register replacement land may be (but need not be) proposed. The Inspectorate will now decide applications under sections 16 and 38.
It can often be difficult to decide whether or not consent is needed for proposals affecting common land or greens. Generally, if works are for the management or improvement of the common – yet they would prevent or impede access to the land – then consent under section 38 will be needed. Certain minor works are not considered to impede access, so do not need consent. Some other works are exempted from the need for section 38 consent by virtue of an Exemption Order made under section 43 of the Act.
If the works would not, on balance, improve or maintain the common or green, or would be inconsistent with normal use, it is unlikely that consent under section 38 would be given. In such cases, it would be more appropriate to apply instead for a section 16 exchange. An application under section 16 would also be appropriate in situations where the owner simply wanted the removal of common land status.
Part 1 of the Commons Act 2006 will bring the commons registers up-to-date, and provision is made for commons registration authorities (generally county councils and unitary authorities) to deal with applications, and to themselves put forward proposals, to amend the commons registers.
Section 24 of the Commons Act 2006 allows the Secretary of State “to appoint persons… to discharge functions of a commons registration authority in relation to applications made to, or proposal made by, the… authority”. In practice, the registration authorities will normally be the decision-maker, but cases where there is a conflict of (the authority’s) interest, or the application is contentious, or the application involves complex issues of fact or law, will be referred to an appointed person for determination.
The Inspectorate has in the past supplied Inspectors on an ad hoc basis to hold hearings and prepare reports to assist registration authorities on common land cases. Building on this experience and our rights of way and access work, Defra has invited the Inspectorate to set up a panel of appointed persons who will decide applications referred to us. We are working with Defra to draw up details of a pilot to be run during 2008-09 to assess the feasibility of the arrangements for a panel.
Martin Steer
Head of Specialist Casework Branch
