Whilst researching this article, I got pleasurably stuck in a Winnie the Pooh, Judith M Berrisford and William Blake loop – spot the connection. Having extricated myself, it dawned on me that common land and village greens are in more places than you think. As with most things that have evolved over centuries, there is also an awful lot of law about them. Even John Major picked on maiden aunts and village greens in an attempt to engage our communal nostalgia.
Though often referred to in the same breath, common land and village greens are different beasts. The former refers to land on which traditional rights of common exist for the benefit of certain commoners (by contrast to the popular, but mistaken view that it is ‘common’ in the sense of the land being available for the community). Such rights include; the right to graze animals and to take turf or wood for fuel (“turbary” and “estovers”). Village greens meanwhile, are specific areas designated for the exercise or recreation of the inhabitants of a locality. Or indeed for; “maypole dancing, cricket and warm beer” as the Report of the Commission on Common Land 1955-1958 so delightfully put it.
Legally, one must go back (at least) to the Inclosure Acts to understand common land. Briefly put, the Acts took effect to put pasture and meadow land (especially the better) into private ownership, whilst still permitting the existing rights of common to be exercised over them. Land was fenced off or gated and this enabled better control and management of it, so that it was not overgrazed or otherwise damaged. For example, if overgrazing was a problem, land would be ‘stinted’ by which each grazier was only allowed a certain number of animals, or ‘stints’, on the land. By the Commons Registration Act 1965, a register was set up listing common land and greens. This was updated in 2006 by the Commons Act – which also helpfully provided a mechanism for correcting the existing mistakes and duplications! New commons can be created in extremely limited circumstances, but all are protected: even fencing, or laying new roads on them, will usually require permission.
Village greens meanwhile, are more contentious for probably one reason alone: by virtue of the 2006 Commons Act new village greens can be designated under the Act’s class C procedure and if so designated, the land cannot be developed and any planning permission obtained on it cannot be used. This is because section 12 of the Inclosure Act 1857 provides that it is a criminal offence to “do any … act whatever (whether wilfully or not) to the injury of the land or to interrupt the use of enjoyment thereof as a place for exercise and enjoyment”. NIMBY heaven. In order to have land designated under the class C procedure, it needs to be shown that a significant number of the inhabitants of any neighbourhood or locality have been using the land as of right for lawful sports and pastimes for at least 20 years. Although use of a public footpath across the land is not sufficient to establish a claim, exercising dogs (or children!) on the land in question has been held to be. Further, there is no discretion under the Act for the registration authority to consider issues such as desirability or impact on the landowner: if the criteria are met, it must be designated a village green.
As a landowner, probably the best method of protecting your land against class C applications, is to erect a sign, stating that use of the land is with your express permission only and that it may be limited or withdrawn at any time. This defeats the requirement that the use by the public be ‘as of right’ and is less likely to goad would-be applicants, than a sign prohibiting access outright.
It follows that, when buying property, you should carry out a search of the register of common land and greens to find out whether any of the property is affected. You should also make detailed enquiries of the seller regarding use of the property over the past 20 years, in case there are circumstances which could give rise to a class C application. Finally, if access to the property is obtained over either common land or village green tread extremely cautiously – literally. Rights of access can be established over both, but the law for village greens especially is very complicated, with each of the (numerous) cases tending to turn on its own merits.
By way of clarification, the Ashdown Forest (better known as ‘Hundred Acre Wood’) and the New Forest, where ‘Jackie’s Pony Patrol’ is set, are both common land, whereas William Blake’s poem, ‘The Echoing Green’ recalls a life in the day of a village green.
About Elizabeth
Despite being one who feels the cold,
Elizabeth braved a move to Northumberland and has worked there as a
solicitor with the firm of Dickinson Dees
LLP, in the Agriculture, Farms and Estates Team, where she started life
as a trainee in 2003. As part of this specialist and nationally
renowned team, she works both for a number of larger estates and trusts
on an ongoing basis and also on one-off matters, covering the range of
rural property law, including; sales and purchases, sporting
rights,rights of way, easements and tenancies, to name a few. Outside
the office, she nearly managed to get sent to the North Pole, loves the
occasional hunt with the CVNNH and continues to try and break the 4-hour
mark for a marathon. She lives with her husband, a terrier and a very
silly basset.
She can be contacted through Dickinson Dees on 0191 279 9000
