Local council ownership and protection of common land and village greens

This advice note was written by our in-house solicitors and last updated on 30 September 2024.

The information and commentary in the note do not constitute legal advice for any individual case or matter. For specific advice on your circumstances, we strongly encourage you to seek tailored legal advice.

What is common land, and who owns it?

Common land is defined by the rights certain individuals (commoners) have over it and not by who owns it. Those rights are called rights of common. Most common land is privately owned, including by local councils.

What are the rights of common?

Rights of common are, in essence, rights to pasture, such as grazing. Rights of common are enjoyed by specific commoners as opposed to all local residents, usually by virtue of the rights being attached to the property they occupy, often adjoining a common. Some rights are personal and not attached to a specific piece of land (known as rights in gross). Council owners of common land can check the commons register to find out who has rights of common. Commons and town and village green registers are maintained by Commons Registration Authorities (i.e. county councils, unitary councils, district councils in areas without a county council in England, or county or borough councils in Wales). The government has produced guidance on maintaining registers of commons and greens.

How are the rights of the common protected?

Rights of common are legal interests in land. Commoners are entitled to exercise their rights without interference or obstruction, although carrying out activities beyond this will be trespass.

What are the rights of the owner of common land?

The owner of common land may use the land for any purposes (subject to any statutory restrictions), provided that any such use does not interfere with the commoners’ rights. The owner may:

• Grant leases of the common land (but any lease will be subject to the rights of the commoners).
• Grant grazing rights (provided that there is sufficient pasture left for the commoners).
• Plant trees on common land provided such planting does not interfere with the sufficiency of pasturage, or take trees that grow naturally on common land.
• Grant wayleaves (e.g. rights to utility services to lay pipes and cables over or under the common). Special considerations arise in the case of easements over common land.

What obligations do the owners of commons have to manage them?

The regulation of non-metropolitan commons is covered by various statutes. It includes providing for improvement of the common, such as draining, manuring or levelling of the common, the planting of trees, the making of rules and regulations, and the general management of the common.

Certain types of work on common land need the secretary of state's consent under section 38 of the Commons Act 2006 (the 2006 Act) - see guidance on Works on Common land and Deregistering Common Land. The link includes a form to apply for consent if this is needed or to apply to de- register part of an area of common land. Some works do not need consent, such as where works are so small that they do not prevent or impede access to or over the land. If the council is the owner of common land, it is for the council to decide if the proposed works fit these exemptions, and such decisions can be subject to judicial review.

What are access rights?

Under the Countryside and Rights of Way Act 2000 (CROW Act 2000) there is a general public right of access on foot over all registered common land in England and Wales (subject to certain exemptions and exceptions).

The public may also enjoy a right of access over certain rural commons by orders made under the Commons Act 1876, or over commons subject to a management scheme under the Commons Act 1899, or over commons subject to special Local Acts. Land which is accessible to the public under those provisions is not access land for the purposes of the CROW Act 2000. Access is also available to common land to which section 193 of the Law of Property Act 1925 (the 1925 Act) applies. Section 193 applies to certain specified categories of commons and other land.

Offences in respect of commons

Members of the public have rights of access to common land under section 193 of the 1925 Act but any person commits a criminal offence under section 193(4) of the 1925 Act if, without lawful authority, they draw or drive upon common land any carriage, cart, caravan, truck, or other vehicle; camp or light any fire on the land; or fail to observe any limitation or condition imposed by the Minister under section 193 in respect of common land.

Section 34 of the Road Traffic Act 1988 states that subject to the provisions of the section, if, without lawful authority, a person drives a mechanically propelled vehicle on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or on any road being a footpath, bridleway or restricted byway, they are guilty of an offence.

What powers do local councils have over unclaimed common land and village greens?

Further to the above guidance, some village greens and common land in England and Wales have no known owners. Local authorities (including local councils) have the power to protect such land. The relevant law is mainly set out in section 45 and in section 38 of the 2006 Act.

Section 45 of the 2006 Act

The 2006 Act applies to:

• A county, district or parish council in England.
• A London borough council.
• A county, county borough or community council in Wales.

The powers apply where:

• The land is registered as common land or a town or village green.
• No person is registered in the register of title as the owner of the land.
• It appears to a local authority in whose area the land or any part of it is situated that the owner cannot be identified.

Local authorities have the power, not a duty, to:

• Take any steps to protect the land against unlawful interference that could have been taken by an owner in possession of the land.
• Institute proceedings against any person for any offence committed in respect of the land (but without prejudice to any power exercisable apart from this section).

Section 45 does not empower a local authority to incur expenditure on activities to maintain or improve unclaimed land, e.g. litter clearance or tree planting. Section 137 of the Local Government Act 1972, or the general power of competence, could be considered for such expenditure. If a council decides to do work on land it does not own, it may expose itself to liability. A council should check if its proposed work affects its insurance coverage. In addition, any works undertaken by a council may lead to an expectation that the council will continue to undertake works in the future.

There is no power for an authority to permit local inhabitants or others to use unclaimed land. Strictly speaking, such an activity is a trespass (in the absence of the consent of the owner of the land), which an authority has the power to prevent, not to sanction. However, as section 45 grants powers but imposes no duties, a local authority may lawfully decide to take no action to prevent activities on the land which it deems to be beneficial, e.g., improvements by a local conservation group, or which do no harm, for example, allowing animals to graze (in most cases).

Section 38 of the 2006 Act – prohibition on works without consent

Section 38(1) of the 2006 Act provides that a person may not, except with the consent of the appropriate national authority, carry out any restricted works on:

• Land registered as common land.
• Land not so registered, which is:
  • Regulated by an Act made under the Commons Act 1876 confirming a provisional order of the Inclosure Commissioners.
  • Subject to a scheme under the Metropolitan Commons Act 1866 or the Commons Act 1899.
• Land not falling within paragraph (a) or (b), which is in the New Forest and is subject to rights of common. 

Restricted works are defined as:

• Works which have the effect of preventing or impeding access to or over land, namely:
  • The erection of fencing.
  • The construction of buildings and other structures.
  • The digging of ditches and trenches and the building of embankments.
• Works for the resurfacing of land if they consist of the laying of concrete, tarmacadam, coated roadstone or similar material on the land (but not if they consist only of the repair of an existing surface of the land made of such material).

The appropriate national authority means the secretary of state, in relation to England and the Welsh ministers in relation to Wales.

In determining an application for consent under section 38(1) of the 2006 Act, the appropriate national authority shall, under section 39(1) (have regard to:

• The interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it).
• The interests of the neighbourhood.
• The public interest.
• Any other matter considered to be relevant.

Section 39 (2) of the 2006 Act provides that reference to the public interest includes the public interest in:

• Nature conservation.
• The conservation of the landscape.
• The protection of public rights of access to any area of land.
• The protection of archaeological remains and features of historic interest.