Q&A
A commons expert at your fingertips! Ask a question you may have about an issue on your common or about commons in general. Our experts will endeavour to provide the best possible advice, however for complex cases you may need to seek specialist legal counsel.
Previous Q&A
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Our insurance brokers are reviewing cover for our insurance renewal. We have long held Liability cover for £10m Public liability and £5m employers liability, but in the light of recent cases, we are advised that this may not be adequate.
We have a constitution but I wonder if there is anything in the 1965 or other Acts or any case law you are aware of which would help us to establish how liability, established against the Committee, might extend to individuals as committee members, trustees, staff or graziers.
We were wondering if immunities found in charities might be useful to Committee members and if we should apply to the Charities Commissioners for charitable status.
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We have talked to a solicitor who specializes in common land. He has made inquiries regarding liability with respect to livestock claims and has concluded that while the owner is the first person against whom a claim would be taken the committee are potentially liable and they should take out insurance.
In terms of Trustee liability for a charity the following is taken from the National Council for Voluntary Organisations http://www.ncvo-vol.org.uk/advice-support/trustee-governance/trustees/liability.
Trustee liability
It is very rare for a charity trustee who acts reasonably and in good faith to be held personally financially liable for their actions.
Trustees who act prudently, lawfully and in accordance with the charity’s governing document can generally seek reimbursement of any personal liabilities out of the charity’s resources.
However, liability is a concern and it is important for all trustees to be aware of the situation.
Trustees can potentially be held liable for breaches of their duties – for example, if they act outside the governing document or fail to follow a statutory or legal requirement.
Trustees can also potentially be liable to third parties and, in some cases, for the debts of the charity. A trustee’s liability for the charity’s debts depends mainly on the legal structure of the charity – whether it is incorporated or unincorporated.
There are a range of methods available to minimise personal liability. The most effective way of minimising liability is to use an incorporated structure and to insure and follow good governance practice and ensure trustees are following their duties and responsibilities.
— Viv Lewis
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Just wondered if you could answer a question for me? Can the owner of a common plant trees on it without consent of the commoners? Well, actually, with the commoners against the planting and with the commoner owning his rights and NOT a tenant of the landowner.
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This is interesting as usually it is the fencing associated with the tree planting that requires the Secretary of State consent rather than the actual tree planting. If the trees are to be fenced then Commoners need to be notified as part of the s38 application process and if they object the inspectorate (PINS) will consider this. If it is only one commoner and the others are in favour then it may not be considered a material objection e.g. if most have signed the HLS then they have to agree with the tree planting in the scheme or they are in breach of the HLS. It will only be those who haven't signed that have a right to object.
I've had a case recently where a commoner decided at the last minute not to sign the HLS and is now objecting that the trees are on 'his' heft. He hasn't though had any sheep on the fell for over ten years and hasn't started grazing again. Also in that case the number are low so there is plenty of space for him to graze though not on his original 'heft'. Not sure what weight the inspector would give to a heft that has had no sheep on it as there are no hefted sheep and 'heft' has no legal rights it is more of a use it or lose it custom and practice. Very important but only exists if in use.
If the trees are not going to be fenced then it is a less clear position. Does tree planting count as works under the Act? I would have thought it should and the commoner could report the works to PINS.
The commoner(s) also would need to demonstrate that their grazing rights are interfered with and this would depend on the overall stocking level on the common.
Overall the matter will depend on the specific circumstances of the common and the commoner and the scheme (if any)
— Julia Aglionby (Chairman FCC)
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The Field Reeves of a regulated pasture in the north of England have been asked by the owner of the moor to give consent to the installation of track across the moor. They are prepared to agree to this but want to ensure that they don’t in any way limit their rights in future.
They want to apply legally binding conditions to the consent relating to the construction, maintenance and future use of the road, for example: no spurs to the road; padlocked barriers and keys only given to those with approval of the Field Reeves; compensation for any loss of forage area in relation to existing and future agricultural and land management schemes. They will also need planning permission and this should be a condition of the works
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To achieve this they need to instruct a solicitor to draw up a legally binding document and get an undertaking for costs from the Owners. The Field Reeves should not bear the cost when they do not want the track.
It is worth considering the penalty if the Owners breach the internal agreement - you can't really make them take the road up but you could impose a fine.
— Viv Lewis
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Could you provide a summary of the Dance vs Savery case?
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The Commons Registration Act 1965 required that all common rights had to be registered and grazing rights had to be quantified. When Mr. Dance registered cattle and sheep rights on 3 commons in Devon he knew that on two of the commons his rights were spread over the commons taken together and that they were not rights to graze the stated number on both commons. However, he argued that the effect of the 1965 legislation was to give him the right to graze the same rights on each common independently. In effect this would double the number of his rights. He lost before the High Court judge and appealed.
The Court of Appeal found (in November 2011) :
An entry in the register of 100 sheep entitles the owner of that right to graze up to 100 sheep on the common concerned. But registration does not give a definitive right to graze 100 sheep, it may be less.
That a registration without condition does not mean that previous conditions are erased by the registration under the 1965 Act. (A condition may be that grazing rights can only be exercised for certain periods of the year by custom or ancient grant from the Lord as owner of the waste). The Commons Act 2006 confirms that constraints may exist even though not stated on the register.So the Court of Appeal ruled:
That if previous custom and practice was to graze the 100 sheep on the 2 commons together, then the right was a “split right”. The right could only be exercised once, in other words, the right could be split across the two commons, but the grazier could not graze 100 sheep on each.
That the register does not need to mention that the right is a ‘split right’, nor is a reference to the other common or commons needed.
In the case of the two commons which had been grazed together prior to 1965 often because they were part of the same original manor the rights may therefore be split and could only be exercised once.
In the case of the third common which is land from a different manor the rights are separate and are not split.
Mr. Dance’s lawyer argued the 1965 Act states that registration of rights is conclusive of the rights registered following the resolution of objections. However the Court of Appeal says the register entries may be conclusive but they are not definitive as to number , because another section of the 1965 Act says that the numbers registered are treated as exercisable in relation to “no more” animals than the number registered. Had the Court agreed with Mr. Dance’s lawyer that the registrations on each common were conclusive in the sense that they were definitive as to number, Mr. Dance would have owned more rights than he had before 1965. His consolation was that his rights were only split over 2 commons, so he is able to continue to claim them separately on the 3rd common.This position did not change with the passing of the Commons Act 2006. You still may need to look at past practice if your registered rights are challenged by others. One wonders whether the drafters of the 1965 Act intended that result, or whether they thought they were bringing certainty.
— Tim Cartmell, Cartmell Shepherd Solicitors
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A number of our commoners are worried about their third party liability, particularly to do with straying stock and public access. Do you know of a suitable policy for a Commoners Association? No luck with the NFU so far. Normally the freeholder would have such insurance but should that not be adequate any claiment would probably then persue the Association.
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I undertook a straw poll among the committee members of the Federation of Cumbria Commoners. Of the people who responded none of their Commoners' Association had third party liability insurance. This is because the Associations are not separate legal identities unless they are incorporated as a company.Therefore the onus is on the owner of the livestock to have their own third party insurance. We have examples where each commoner has to undertake to take out public liability insurance of at least £2 million when they sign up their HLS or UELS.
— Viv Lewis
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The following question has come from a member of a Commons Association.
The common in question was registered under the 1965 Registration Act and ownership (which it is popularly believed rested with a large aristocratic landowner who owned most of the village) was registered as unknown. The suspected owner has been approached and refused to confirm or deny his ownership. Under the 1965 Act the District Council can act, in these circumstances, as if it were the owner, and has done so over the last 45 or so years.
The common is grazed (cows and horses) but by very few farmers. There are several hundred rights owners. The Commoners Association constitution requires it to represent the community (which uses the common for many and varied purposes of which grazing is only one) and typically the people who are elected are people who are prepared to work for the good of the common and the community - but not necessarily graziers.
The proposal is to register the Association as owner with the Land Registry. Almost all the burden of monitoring and improving the common falls on the committee, which obtained agri-environment scheme grants for this purpose. The District Council might welcome the opportunity to shed some of its responsibilities - but this is not certain.
Proponents of the proposal argue that (a) unless the Association claims ownership, some other body might and conflict could then occur between the new owners and the manager (the Association) (b) with planning laws being relaxed the land could well be a target for developers (who might offer alternative less local land in lieu) (c) it would give the Association greater control over the common.
Opponents argue that (a) the land is protected as SSSI and SAC (b) ownership could bring expensive obligations with it (c) the ownership/management division has worked well for a century or more.
I would be most glad if you could identify other commoners committees who have faced this dilemma and let me know of their experiences (preferably both those who have embraced ownership and those who have rejected it). There is some urgency about this as the Association has put the matter in the hands of solicitors who are pressing ahead with the proposal.
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There are many commoners and others who have experienced difficulties because they are precluded from doing something on a common without a registered owner, or because concocting some sort of work-around is difficult in such circumstances, involving the 1899 Commons Act and trying to persuade local authorities to manage land on behalf of the owner. Such locations are very unevenly distributed, and there seem to be a lot of cases in some areas, like Cornwall for example, where perhaps land ownership was less well known at the time of the 1965 Commons Registration Act.
I think you have set out the arguments well. Overall, I think that the greatest argument for doing it is that it simplifies matters. Defra and everyone else assumes there must be an owner, and it raises fewer difficulties in AE schemes. We do not know whether such difficulties might become greater or fewer with new rules in the future. Even with the local authority acting on behalf of the owner there are limitations on what they can do.
I sense no alarm bells with this, and feel, overall, it is worth doing. I think there may be issues to consider with regard to who the association is who actually will own the land, and how it is constituted long term, who its members are, how they are elected, and in whose interests they are acting (private/public).
— Graham Bathe
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How does ownership work with common land?
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Here are some general comments on ownership that may be helpful - it not should be read as professional guidance.
Common Land is land that is privately owned which other people have private rights over e.g. for grazing - they have rights in common with others (abbreviated somewhat confusingly to common rights). All sorts of individuals and organisations own common land including county councils, lords of the manors, farmers, environmental organisations, MoD, water companies and private individuals. Common Land can be bought and sold just like any other land but will always remain as common land and be subject to the registered common rights as detailed on the Commons Register and other obligations summarised at https://www.gov.uk/owning-common-land. Strictly speaking an owner cannot have common rights over their own land but in many cases owners still have common rights registered in their name over the land they own. If an owner is only selling the common but not the farms to which the common rights are attached then the sale would not include those common rights, they stay attached to the land detailed in column 5 of the commons register.
One area that can be a bit confusing with local authorities is where they have assumed management control under s9 of the Commons Registration Act 1965. Under this local authorities may take action to protect commons where no owner is given on the Commons Register or the Land Registry but do not become the owner and therefore could not sell any land managed under that provision.
— Viv Lewis
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Can you convert a piscary (fishing) right in gross to an appurtenant right attached to my land? I live in North Yorkshire.
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Hereford county council owned some small farms which were used to give farmers a start in the industry. With the manor (that they owned ) came some common rights. But there are several other land owners with common fights on the same common. As the owner of property(much of which has been sold off) with some of the rights can Hereford now sell the common off as free hold property.
— William Smith
At common law, it was impossible to convert a right in gross into an attached right. There is no provision in the 1965 Act enabling a person to do so either.
The 2006 Act (section 10) prospectively enables rights of common held in gross to be attached to land. Section 10 states the application must be made by the owner of the right and that the person occupying the land (if different) must consent.
Section 10 of the 2006 Act is currently only in force in the pilot areas. North Yorkshire is not a pilot area, so the person in North Yorkshire cannot yet convert his fishing rights in gross to an appurtenant right.
When section 10 is in force, the correct form to use will be a CA4.
— Cartmell Shepherd Solicitors Cumbria
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We farm in the uplands and have common sheep rights. A farmer from a neighbouring valley has rented a farm in our valley for the past 30 + years. This farm is without any registered rights. He now claims to have recently got rights registered. Could this be possible? If so, all the moorland agreements will have to be re-structured. We understood that no new rights could be registered if not done in 1965.
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This is a general response for guidance and should not be relied on as professional advice in taking decisions
The first point of call in these cases is to ask the farmer to provide evidence of his common rights from the Commons Register, if the rights are registered he should be able to provide you with the entry number from the relevant register and preferably a photo copy. You can then check this yourself.
If common rights never were registered it has only been possible to add rights in those counties which are part of the pilot roll out of Part 1 of the Commons Act 2006 and only if prescriptive rights have been acquired through more than 30 years usage. The pilot counties are Devon, Kent (but not including unitary authorities in these first two counties), Cornwall, Hertfordshire, Herefordshire, Lancashire (but not Blackpool), and Blackburn with Darwen.
Furthermore some counties have decided not to accept requests to register prescriptive rights - it is a grey area of the law.
It is always possible he has bought rights in gross and is using those. In that case he would also have to provide proof from the register. If the farmer does have registered rights then if he starts grazing a hefted flock, it would probably be wise to discuss his management to ensure you are compliant with any management agreement you have signed up to.
— Viv Lewis
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I have purchased 30 acres of land from a Water Authority which has certain rights of common granted on it. How do I find out who has the rights to the land and what the commoner can or cannot do? Have so many questions but have found it difficult to source the answers.
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There are various things you can do:
You should check your copy of the sale contract and Conveyance to see if you have acquired the rights. If you have it should say that “section 62 of the Law of Property Act 1925 will apply”.
You can check the Register of Common land and of common rights held by your County Council. They will tell you the extent of the whole common, the nature of the rights, and to what in-bye land rights exercisable upon it are attached.
Once you have found out if you own rights of common it is good idea to find out if the common is entered into an agri-environment scheme as this will affect your rights, particularly grazing rights. I suggest that you look at http://www.natureonthemap.naturalengland.org.uk and http://magic.defra.gov.uk/ These sites will allow you to indentify whether the common is in an agri-environment scheme.
— Viv Lewis
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What can be done about illegal off-roading activity on common land?
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The powers currently available to the police and local authorities are an important tool in tackling illegal and inappropriate motor vehicle use, but there are additional ways in which the local community, together with the police and local authorities and the relevant motoring clubs, if appropriate, can work to provide solutions.
Defra have a useful guidance note which you can access at:
http://archive.defra.gov.uk/rural/documents/countryside/crow/regulating-motorvehicles.pdf
— Viv Lewis
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A question regarding access. Assuming a Common is designated open access what is the position regarding an organised orienteering competition, ie do they have to have owners consent or can they rely on the open access?
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It is my understanding that unless the event is entirely on public rights of way including all ancillary activities such as check points or medical support, then access under the CROW act does not give the right to play organised games. An orienteering competition will fall under this category. If people wish to organise and participate in these activities they should seek the permission of the land owner – which is good practice and to be encouraged at all times for all events. Also there may be issues if the common is a SSSI or under an agri-environment agreement and Natural England may want to have a say and shold be informed.
The playing of games by local people may be allowed.
For more information I suggest you look at the Common Land Toolkit http://publications.naturalengland.org.uk/publication/36015?category=40026
— Viv Lewis
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A Council in the South West undertook an HLS agreement with Natural England in April 2011. Shortly afterwards they received a visit from a local RPA inspector. After the inspection the Council were subject to a 3% reduction in their HLS payments due to the presence of injurious weeds. In addition, all of the graziers and those who include the common land as part of their Single Payments Scheme were also docked 3%.
The Land is privately owned, The Council manages the land and the graziers have no formal agreement with regard to the management of the common. The current byelaws prevent unauthorised persons from cutting material on the common.
Are the RPA right in docking the graziers SPS?
Who has the ultimate responsibility to manage the weeds on the common, The Council, the graziers or both?
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Health Warning: This response is a general response and does not consitute professional advice. It should not be relied on specific advice should be sought if required.
Dear Mike,
This is a really difficult area as the commoner rights are for their animals to eat the vegetation therefore they have no formal legal rights for weed control that remains with the owner or the person to whom they have delegated it (perhaps the Council in this case?). That said by claiming SPS commoners are agreeing to abide by the GAEC which includes injurious week control. If I was a grazier I might write to the RPA saying that they as commoners do not have the legal right to control the weeds and that they should not have penalties applied as they are not responsible for the breach.
I note the Council has an HLS on the common, I would expect weed control to be part of the small print for any HLS and therefore it would be the Council's responsibility. Has the owner delegated management control to the Council? I would expect this to be the case if the Council has entered into an HLS. Is the Council receiving HLS money they can use to control the weeds?
Can the Council and the commoners get together to find a solution?
Hope this helps.
— Julia Aglionby
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The case is Besley v John (2003) where the judge ruled that rights of common do not give the commoner the right to provide supplementary feed. https://www.casemine.com/judgement/uk/5b46f21c2c94e0775e7f25fd
On many commons there is a tacit agreement that supplementary feeding is allowed / tolerated by the owner and in some such as the New Forest limited supplementary feeding is authorised under the agri-environment agreement . This ‘temporary' agreement doesn’t change the legal position that rights of common do not include the right to take supplementary food to the fell..
— Julia Aglionby (Ex)
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The Rule of Law is contingent upon who makes the laws. Adherence to the Rule of Law is not binding if the laws to which one is expected to adhere are oppressive, immoral or denigrate human or natural rights. One should not obey the Rule of Law if the laws are bad.
You definition of Rights of Common describes the era subsequent to the rights of ordinary people to the land being restricted or denied by the powerful (usually in the name of protection) and by the "word" (the ability to articulate ownership on paper, or more accurately, parchment). You fail to make it clear that common people had common rights through common and communal usage of land before "Rights of Common" were enshrined in law.
To give you an example: in Australia the rights of the Aboriginal peoples have been returned to them by parliament on the basis their common land and rights were denied by the colonial interlopers. As the Aboriginals did not have writing, paper, title deeds and land registries, the identification of ancient land use, spiritual attachment or other evidence has been used to establish their modern rights. The rights are real, mining companies have today to negotiate with communal Aboriginal groups to explore and extract on their land.
Before writing, paper, title deeds and land registries all land was held in common throughout usage, not by law. Today in Asia (China in particular) and all over Africa, people who have held land simply on the basis that they, and often their ancestors, occupied and worked the land, are having it stolen from them.
Their land is being stolen in the same way as true commoners (not those defined in law) had it stolen from them in the British Isles through devices such as the Statue of Merton, the Highland Clearances and over 5,200 Inclosure (Enclosure) Acts passed by pre-democratic parliaments.
In defining "Rights of Common" perhaps you should clarify that all land was once common to all.
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I think it important in respect of your interesting comments to emphasise that the Foundation is primarily concerned with 'improving' the situation from where we were only twenty years ago. Our focus has therefore been to recognise the fragility of pastoral commoning and undertake to improve its sustainability.
Your general points are indeed an important reflection on what Blackstone the English jurist wrote in his commentaries on the laws of England in 1776 that struck his imagination
'...the right of property :or that sole and despotic dominion that one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.'
Pragmatically we have taken as our guideline for our particular work that commons exist and that they are not open access resources and in our case in Britain has a usage strongly influenced by custom as opposed
to statute but focussed in pastoral areas on:-The interest that a commoner has in a common is, in the legal phrase, 'to eat the grass with the mouths of his cattle , or to take such other products of the soil as he may be entitled to.'
Even well researched historians find it difficult to understand and explain fully 'how things were' and what has happened. Even before the emergence of the legal system that came after the conquest societies had rules and hierarchies but all that is above and beyond our aims and purposes in the Foundation but nevertheless there is history to discover and we wish you well in your efforts.
— Andrew Humphries
Many thanks for your thoughtful and well informed comments.
We do of course concur with the essence of your message, i.e. that rights pre-date legislation. This is undoubtedly the case, and we have enough examples pre-Domesday to demonstrate it. Work by Susan Oosthuizen, recently outlined in her book, Tradition and Transformation in Anglo-Saxon England – Archaeology Common Rights and Landscape, demonstrate that Norman manorialism was often overlaid upon existing Saxon systems, which themselves may have had progenitors in Romano-British culture, or earlier. Work by Peter Herring in Cornwall shows that the Bronze Age settlement pattern on Bodmin, with small fields intersected by wide droves, funnelling out onto the open moor, emulate comparable patterns in commoning communities today.
We might take issue on semantics. Whilst such rights pre-date legislation, and pre-date parliament (in the sense of a centralised legislative assembly), this does not mean that they pre-date the law. Custom and practice became codified as rights and protected within local systems that could legitimately be called law (but not legislation). Even today the entitlement to use a right of way is focused on principles of common law rather than legislation.
Where we are less sure of our ground is concerning the regulation of rights in the early historic and pre-historic periods. We should be wary of thinking that all was equitable and non-controversial.”
— Graham Bathe