Fanfare for common land – what rights can be exercised over it?

Large swathes of beautiful North Yorkshire are made up of ‘common land’, a concept dating back to 1215 which allowed ‘commoners’ the right to take or use something produced naturally on land belonging to someone else.

Andrew Little, Commercial Property Law and Agricultural specialist at Pearsons & Ward in Malton (part of Ware & Kay) explains the rights and obligations associated with common land.

These ancient rights still exist today, with common land currently accounting for around three percent of England. A right of common can be:

• pasturage – the right to put livestock out to feed on the land;
• pannage – the right to put pigs out to feed in wooded areas of the land;
• estover – the right to take specific timber products from the land, such as firewood;
• turbary – the right to take turf or peat from the land;
• piscary – the right to take fish from ponds, lakes, rivers and streams;
• rights in the soil – the right to take soil or minerals from the common; or
• animals ferae naturae – the right to take wild animals.

The details of each piece of common land and the rights exercisable over them are recorded by commons registration authorities, such as county, unitary, district or borough councils. There is also a database of registered common land in England.

Rights of common must be registered to be exercisable. They may have arisen:

• by express grant;
• pursuant to statutory provisions;
• by prescription after the continual exercise of a right over a period of 20 years or more; or
• under an exchange of land, for example on a compulsory purchase order.

Owners of common land can use it and take resources from it, as long as this does not interfere with someone’s ability to exercise their rights of common or make it harder for them to do so. For example, if a commoner has grazing rights on your land, you could not build houses on it because it would reduce the amount of grazing land.

If you own common land, you can lease any surplus capacity of the common beyond that taken by the rights of common. You can also lease land to which rights are attached.

You can take also legal action to stop anyone, including commoners, from abusing their rights. For example, this could be by grazing more livestock than they have rights to graze, or by selling timber taken from the common.

Common land often includes road verges, and many properties are accessed via common land: therefore, it is important that if you have to drive over common land to access your property, you have proper rights of way over it. A legal right to drive over common land can be obtained by prescription or an easement.

A right of access by prescription can be established if you, or the previous owners, have driven across common land to access your property for over 20 years without being challenged by the landowner. You do not need to pay the landowner compensation for this right of access. However, it is important to be aware that in some circumstances driving vehicles over common land can be classed as a criminal offence and it is therefore important to establish whether or not this may prevent you from obtaining a right of access by prescription.

If you have no right to access by prescription, you can ask the common land owner to grant you right of access through an easement. An easement might be suitable if the landowner has always previously given you permission for vehicle access to your property; or you, or the previous owners, have accessed the property by vehicle for less than 20 years. You may have to pay the landowner compensation for granting the easement.

For further information contact Andrew Little at York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247, or email andrew.little@warekay.co.uk.