The Extent of Common Land
Over 500,000 hectares of common land exist in England and Wales today, accounting for some 4% of the land area. Much of this land is marginal in character, comprising mountains and moorlands, coastal strips, wetlands and marshes. These landscapes have historically been, and continue to be, of vital importance to commoners and rural communities, and are of exceptional conservation value. Though seeming ‘wild’, they have a long history of land use and regulation. In addition, some of our most iconic surviving commons are urban, providing much-needed green spaces in our towns and cities.
Pockets of common land survive in almost all counties and boroughs of England and Wales – everyone can potentially find a parcel of common land within reach which is worthy of study. However, common land is concentrated in key areas, particularly the northern uplands (for example, Cumbria and Yorkshire have 31% and 21% of England’s common lands respectively) and the South West uplands of England. In Wales, there are high concentrations in the Brecon Beacons, around Snowdonia, and the Gower peninsula. Significant woodlands with common rights include the Forest of Dean (Gloucestershire), New Forest (Hampshire) and Ashdown Forest (Sussex). Coastal commons can be found as far apart as North Norfolk and the Solway Coast (Cumbria).
The legal status of Common Land
In general terms, common land is land which is owned by one or more parties, over which others have common rights. Much of the common land which survives today was historically deemed ‘manorial waste’ or ‘common waste’ – the open, uncultivated and unimproved lands of a manor. Other commons surviving today were originally royal forests, reserved for hunting. Only those lands which were registered as common under the Commons Registration Act 1965 are considered legally common today, though there are exceptions.
Who owns common land?
There is a general misconception that common land is owned by nobody or, conversely, everybody; in fact, common land is privately owned. A system of property rights which can be traced to the thirteenth century – confirmed by the Statutes of Merton (1235) and Westminster II (1285) – vested ownership of the soil of a common in the lord of the manor, subject to commoners’ rights to its products (see below). Whilst some commons are still owned by lords of manors today, others may be owned by private individuals, institutions (e.g. parish or borough councils), charitable trusts (e.g. The National Trust), or the Crown. In some cases, the identity of the owner is unknown. The Common Land Register gives the name of who, if anybody, claimed ownership at the time of registration, though this information may now be out of date. The owner of common land generally has rights to extract soil, stone and minerals, and rights to kill game on the common (sporting or shooting rights).
A common right is a right to take or use the natural products of another person’s soil. Common rights give individuals different levels of access to common land depending on the nature of the right and the means by which it is limited or quantified. The principal classes of common right are:
- Pasture: a right to graze animals
- Turbary: a right to cut peat or turves
- Estovers: a right to take woody material or vegetation (e.g. bracken or gorse)
- Piscary: the right to take fish
- Pannage: the right to turn out pigs in woodland
- Soil: rights to soil, sand, stone etc.
- Animals ferae naturae: a right to take wild animals
The nature of these property rights might vary in detail between different commons.
A common right did not permit the holder to engage in a ‘free for all’, but only to exercise his or her right as far as was necessary for their own use. Common rights were subject to regulation, particularly to uphold ‘good neighbourhood’, i.e. friendly relations within the community of commoners. Historically, common rights were generally attached (‘appurtenant’ or ‘appendant’) to specific dwellings or fields, and could not be severed, thereby anchoring rights to a resident community. However, some common rights were classed as personal property (rights ‘in gross’) which could be sold or leased independently of property, showing a looser or more flexible connection between user-community and land.
The quantities of bracken, gorse, stone etc which could be taken were usually governed by domestic need: proportional to the size of the household. Grazing rights might be limited by one of two alternative means: (i) the rule of ‘levancy and couchancy’, which limited each grazier to the number of animals they could overwinter on the produce of their own land; or (ii) stinting, which put a numerical limit on animals. It was the manor court which traditionally regulated the exercise of common rights, for example, by enforcing ‘levency and couchancy’, or by identifying specific areas where an individual commoner could cut peat or bracken. These traditional controls largely eroded over the course of the nineteenth and twentieth centuries, particularly in the wake of the Commons Registration Act 1965, and today, a spectrum of agreements and approaches are implemented by commoners, landowners, agencies and other stakeholders. The Common Land Register lists those who claimed common rights at the time of registration.
(Text by A.J.L. Winchester and E.A. Straughton)