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LEGAL MATTERS - COMMONS AND GREENS

Commons and greens: the role of local councils

by Hugh Craddock, Case officer, Open Spaces Society

 
Many local councils have common land within their parish or community. Some will be fortunate to host a town or village green – many of which have similar, indeed common, origins.
There will probably be some places within the parish where fences, hedges or walls bounding a local road have fallen away, and the land either side is unenclosed, open and uncultivated. The land may still be grazed by sheep or cattle, but elsewhere, trees and scrub may predominate, and keeping the land ‘open’ in practical terms is an increasing challenge. These are likely to be the commons, or the greens. They are the ‘waste’ of the former manor, on which the tenants of the lord or lady of the manor would exercise rights of common – this is, rights to the produce of the soil, most often grazing, but sometimes including turning out pigs to forage in autumn (pannage); or rights to wood or bracken (estover), peat (turbary), fishing (piscary) or quarry. Such rights often endure today, exercised by ‘commoners’, and may be essential to the vitality of, particularly, upland livestock farms.
What was waste, common land or green in the past is not necessarily recognised as such today, with much of it inclosed. Many places are still known as ‘… Common’ even though the common was inclosed generations ago. Under the Commons Registration Act 1965, all three classes of land (waste, common or green) were to be registered in a once-and-for-all exercise between 1967 and 1969. Land that was not registered in time was ‘deemed’ no longer to be common land or green.
The process had many flaws and the legacy is the registers of common land and town or village greens held by commons registration authorities (‘CRAs’: county councils in two-tier areas), which form a comprehensive record of what land is legally protected, the rights of common exercisable over it, and a now-aged snapshot of claims to ownership.
Parish and community councils received copies of extracts of the registers whenever a provisional registration was made affecting their area, and some local councils retain them. It is advisable to keep these records but reliance should be placed on the registers held by the CRA, which may reflect amendments not notified or retained by local councils. The registers are open to inspection by the public, and copies can be obtained, usually for a modest fee.

What do the registers show?

  • Each common land or green usually has its own serially-numbered register unit (in the form CLn or VGn).
  • The land section of the register will describe what land has been registered, and by whom; it should also state the area. A further entry will show that the registration has become final (perhaps following a hearing held by a Commons Commissioner to adjudicate on any dispute). Additional entries may describe amendments or deregistration.
  • The rights section will show any rights of common exercisable over the registered land. On an upland common, there may be many; on a lowland common or green, perhaps none. Each entry will be supported by a further entry stating that it has become final or any amendment to it. Most rights (rights appurtenant or appendant) are attached to land, typically a farm holding or a cottage. That land is specified in column 5, sometimes by reference to a supplemental map or Ordnance Survey-plan parcels. The owner or occupier of that land is entitled to exercise the registered right, and not necessarily the person (stated in column 3) who originally applied to register. A few rights are held in gross, in which case the owner’s name and address likely is given in column 5.
  • The ownership section will state who claimed ownership of the common or green, and if disputed, the determination of a Commons Commissioner as to ownership. If the land was already registered in the register of title held by HM Land Registry, then the only entry made in the ownership section was a cross-reference to the register of title. Any subsisting entry ought to record an ownership that has not changed hands since the time of provisional registration in the late 1960s.
  • The register map will record the boundaries of the common or green, usually drawn on an Ordnance Survey map at a scale of 1:10,560 (six inches to one mile),. These are not always well executed, and may give rise to uncertainty about the precise boundary: in such cases, it may be helpful to refer to the map supplied with the original application to register the land, and to check what physical boundaries existed at the time of the application (for example, a common is more likely to be bounded by a long-standing moorland wall).

Apart from any rights of common exercisable over registered land, nearly all common land is subject to a statutory right of access for open-air recreation. This may arise under Part I of the Countryside and Rights of Way Act 2000. But some land, such as golf courses and racecourses, is excepted land, and the right will not apply (even though it is registered common land). About a fifth of commons are subject to rights of access arising before 2000: these rights prevail over those conferred by the 2000 Act, and are seldom excluded (even on golf courses).
Most notably, commons in pre-1974 urban districts and boroughs are subject to access for air and exercise by walkers and horse riders under s.193 of the Law of Property Act 1925. Many amenity commons are subject to schemes of regulation and management under Part I of the Commons Act 1899, which also confer access rights. Town or village greens are subject to a right of enjoyment by local inhabitants for sports and pastimes (generally, people from further afield have no rights, but are tolerated as visitors).
A scheme made under the 1899 Act is a useful mechanism for managing commons and greens. A scheme may be made by the local authority (district councils in two-tier areas), National Park authority or Conservation Board. It is subject to veto by the owner of the land, or by one-third of the common-right holders (if there are any). In the absence of any veto, the management and regulation of the common or green is vested in the authority that made the scheme. That authority could then make an agency arrangement with a local council under s.101 of the Local Government Act 1972, to delegate its functions. (It was possible to delegate powers under s.4 of the 1899 Act, and some such arrangements may still endure.)
Making a scheme can be an excellent means to bring management to commons or greens with no known, or a neglectful, owner. A veto is unlikely unless there are active and opposed commoners. Local councils will need to recruit the district or unitary council for the purpose of making a scheme, perhaps with an agreement to defray the costs and to enter into an agency arrangement. Because a scheme cannot be revoked, scheme-making authorities are likely to be cautious about the inevitable funding commitment.
There is a further power conferred on local authorities in relation to commons and greens with no known owner. Such land is particularly vulnerable to abuse, because of the absence of any active management. Under s.45 of the Commons Act 2006, the local authority may act to protect the land against unlawful interference as if it were the owner. That would include bringing proceedings where there is a trespass or encroachment to the land (such as an adjoining owner who has extended a garden on to the common). The local council can ask an encroacher to withdraw, because it is empowered to resort to court action just as if it were the landowner.
More generally, any person, including a local council, may take enforcement action against unlawful works on common land, under s.41 of the 2006 Act. Works are unlawful under s.38 of that Act if they restrict or impede access across the land, or if they involve putting down a sealed surface across the land other than in replacement for an existing lawful surface, and the works do not have consent. Consent may be sought from the Secretary of State or the Welsh Government under s.39.
Where unlawful works are done, a good first step may be to encourage the person responsible to seek consent (consent may be granted retrospectively), but the local council can make clear that, if consent is not sought or not granted, further steps may be taken to secure removal of the works. The society publishes information on how to take action. A regular organised ‘beating of the bounds’ of the commons within the parish or community can be effective at discouraging encroachment.
Greens are subject to different protection under what are often referred to as ‘the Victorian Acts’: s.12 of the Inclosure Act 1857, and s.29 of the Commons Act 1876. It is, among other things, an offence under s.12 to do anything, ‘to the interruption of the use or enjoyment thereof as a place for exercise and recreation’, and encroachment on a green is a public nuisance under s.29. There is, for most greens, no statutory consent mechanism for works (as there is on commons), and the criminal law applies to any breach of the Victorian Acts.
Perhaps the local council may own one or more commons or greens? Many councils acquired ownership long ago, perhaps as a gift from a lord or lady of the manor, or when the land came on the market in the distant past when values were low. Such land is now likely to be held under the Open Spaces Act 1906 or the Public Health Act 1875, in trust for enjoyment by the public. The public have a right of access to such lands by virtue of its being held in a statutory trust.
Local councils that own any common or green, including in consequence of vesting, would be well advised to seek registration of title in the register of title, by making a voluntary application for that purpose to HM Land Registry. This will secure effective protection against any future claim to adverse possession, and facilitate a more reliable mechanism for recovering possession against encroachments than an action under s.41 of the 2006 Act. No local authority should leave land vulnerable to predation for want of a registered title.
Where commons or greens are held by a local council, any disposal – including, it seems, of an easement over the land – must comply with s.127 of the Local Government Act 1972, including the requirement to advertise intention applied to any open space by s.127(3).
Council-owned open space, not already registered as town or village green, can be voluntarily registered as such on a simple application to the CRA under s.15(8) of the 2006 Act. Once registered as a green, the protected status of the land is almost impregnable.

The Open Spaces Society is Britain’s oldest national conservation body, founded in 1865. It campaigns to create and protect common land, town and village greens, other open spaces and public paths. It has provided assistance to parish vestries and then local councils on protecting commons and greens throughout its existence.
It asks that local councils subscribe to membership in order to take advantage of casework services and also provides training.
The Open Spaces Society, 25a Bell Street, Henley-on-Thames RG9 2BA. www.oss.org.uk

 

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Written by Hugh Craddock, Case officer, Open Spaces Society
As appeared in Clerks & Councils Direct, July 2026
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