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Researched and presented by Margaret Craddock
Common Land -
Definition and Location

Definition of Common Land

Common Land (a common) is an area of land in the United Kingdom or Ireland that is open to the public at all times, owned collectively or by one person, but over which other people have certain traditional rights, such as to allow their livestock to graze upon it, to collect firewood, or to cut turf for fuel.  Around 3% of the land area of England is recognised as common land and is land registered under the 1965 Commons Registration Act which is shown as such in the registers held by the commons registration authorities.  Some common land was exempted from registration under the Act, and so is not registered as such, even though it is widely recognised a common land today.  Exempted areas include the New Forest and Epping Forest , as well as a number of urban recreational commons

The Inclosure Acts were a series of United Kingdom Acts of Parliament which enclosed open fields and common land in the country. This meant that the rights that people once held to graze animals on these areas as well as the use of resources (wood, water, etc.) of the area were denied.

Inclosure Acts for small areas had been passed sporadically since the 12th century but the majority were passed between 1750 and 1860. Much larger areas were also enclosed during this time and in 1801 the Inclosure was passed to tidy up previous acts. In 1845 another General Inclosure Act allowed for the appointment of Inclosure Commissioners who could enclose land without submitting a request to Parliament.

Under this process there were over 5,000 individual Inclosure Acts and 21% of land in England was enclosed, amounting to nearly 7 million acres (28,000 km²).

Rights of Commons

Historically most rights of common were appurtenant to particular plots of land, and the commoner would be the person who, for the time being, was the occupier of a particular plot of land (or in the case of turbary), even a particular heath.   Some rights of common were said to be in gross - that is, they were unconnected with ownership or tenure of land. This was more usual in regions where commons are more extensive, such as in Northern England or the Fens, but also included many village greens across England and Wales . Most land with appurtenant commons rights is adjacent to the common or even surrounded by it, but in a few cases it may be some considerable distance away.

Example rights of common are:

Pasture Right to pasture cattle, horses, sheep or other animals on the common land. The most widespread right.
Piscary Right to fish
Turbary Right to take sods of turf for fuel.
Common of Marl Right to take sand and gravel.
Mast of pannage Right to turn out pigs for a period in autumn to eat mast (beech mast, acorns and other nuts).
Estovers Right to take sufficient wood for the commoner's house or holding; usually limited to smaller trees, bushes (such as gorse) and fallen branches.

On most commons, rights of pasture and pannage for each commoner are tightly defined by number and type of animal. For example the occupier of a particular cottage might be allowed to graze fifteen cattle, four horses, ponies or donkeys, and fifty geese—the numbers allowed for their neighbours would probably be different. On some commons (such as the New Forest and adjoining commons), the rights are not limited by number, and instead a marking fee is paid each year for each animal turned out.

Pasture commons

Pasture commons are those where the primary right is to pasture livestock. In the uplands, they are largely moorland, on the coast they may be salt marsh, sand dunes or cliffs, and on inland lowlands they may be downland, grassland, heathland or wood pasture, depending on the soil and history.

These habitats are often of very high nature conservation value, because of their very long continuity of management—in some cases for many hundreds of years.

In the past, most pasture commons would have been grazed by mixtures of cattle, sheep and ponies (often also geese). The modern survival of grazing on pasture commons over the past century is uneven.

Arable and haymeadow commons

Surviving commons are almost all pasture. In earlier times, arable farming and haymaking were also included in the commons system, with strips of land in the common arable fields and common haymeadows assigned annually by lot. When not in use for these purposes, such commons were also grazed. Examples include the common arable fields around the village of Laxton in Nottinghamshire, and a common meadow at North Meadow, Cricklade.

Commons law

The legal position concerning common land is confused. Most commons are based on ancient rights which pre-date the established law and even the monarchy. The exact rights which apply to individual commons may be documented but more often are based on long-held traditions. The UK government tried to regularise the definitions of common land with the Commons Registration Act 1965, which established a register of common land. However numerous inconsistencies and irregularities remain.

Prior to the Erection of Cottages Act 1588, an Englishman could build his house on common land, if he could raise the roof over his head and have a fire in the hearth between sunrise and sunset, and claim the dwelling as his home.

Registered commons often abut each other, so what may appear to be a single large common may in fact consist of several commons with no visible boundary between them — these may for example be in different parishes. The commoners will have reciprocal rights over each other's commons.

The maintenance of fences around a common is the responsibility of the occupiers of the adjacent enclosed land, not (as it would be with enclosed land) the responsibility of the owners of the grazed livestock. This can lead to difficulties where not all adjacent occupiers maintain their fences properly.

The act of transferring resources from the commons to purely private ownership is known as enclosure, or (especially in formal use, and in place names) Inclosure. The Inclosure Acts were a series of private Acts of Parliament, mainly from about 1750 to 1850, which enclosed large areas of common, especially the arable and haymeadow land and the better pasture land.

It was the process which saw the privatisation of previously commonly held and used areas of land.  The communal element was abolished and individual landowners and tenants took over separate, private control of defined areas of land.  Ancient rights, customs and practices were set aside and there were distinct winners and losers. The community no longer had rights over most of the land and the poorer members of village society were frequently disadvantaged in consequence. The process involved both a legal change and a physical change as ownerships and rights were altered, large open areas became smaller enclosed areas, and local maps were literally re-drawn. Physically, the great open fields, unfenced and unhedged meadows and pastures, and the expanses of fen, moor, common and heath were divided up into hedged, fenced or walled fields. The land was enclosed, instead of open.

It is often thought that a common is somehow owned by everyone, or at least by the community in some sense. While that may have been true more than a thousand years ago, when waste disambiguation needed would be used for grazing by the local community and over which there would not be, nor would there need to be, any particular limit or control of usage; since at least late Anglo-Saxon times, the right to exercise a right of common has been restricted to a commoner.

The use of commons rights was carefully controlled, and so in practice commons did not usually suffer from the tragedy of the commons. For example, in response to overgrazing a common would be stinted, that is, a limit would be put on the number of animals each commoner was allowed to graze. These regulations were responsive to demographic and economic pressure — rather than let a common be degraded, access was usually restricted even further.

Commons are often crossed by public roads, and this leads to another problem on modern pasture commons where grazing survives (or is to be reintroduced). Historically, the roads would have been cart tracks, and there would have been no conflict between their horse-drawn (or ox-drawn) traffic and the pastured animals, and no great difficulty if pastured animals wandered off the common along the roads. However, these roads now have fast motorised traffic which does not mix safely with animals. To continue (or restore) grazing, such roads may need fencing or at least blocking at the edge of the common with cattle grids — however permission for fencing on a common is a bureaucratic process which can be interrupted or prevented by objectors.

Some commons are managed by Boards of Conservators for the wider public benefit. The Commons Act 2006 provides for the establishment of Common Councils to manage common land. The Commons Councils established under the Act will have a similar role to that of existing Conservators.

Royal Forests are
legally separate from ordinary commons, but most have a similar commoning system.

Around 3% of the land area of England is recognised as common land and is considered to be that land which was registered under the 1965 Act, and which is shown as such in the registers held by the commons registration authorities.  However, this definition is seldom adopted in any legislation (an exception is liability for livestock on highways crossing common land in the Animals Act 1971). Furthermore, some common land was exempted from registration under the Act, and so is not registered as such, even though it is widely recognised as common land today. Exempted areas include the New Forest and Epping Forest, as well as a number of urban recreational commons.

Click here to read about The Enclosure of Common Land in Burton Latimer

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