Commons and the law: The old and the new

Alec Samuels considers the problems of old and new commons and old and new rights

Following the recommendations of the Report of the Royal Commission on Common Land 1955-1958 (1958) Cmnd 462, in 1965, parliament resolved to establish a register of common land with a registrar of rights over common land Commons Registration Act 1965, now replaced by the Commons Act 2006 Part 1 ss 1-25 and schedule 6 part 1. The 2006 Act Part II deals also with management.

The 1965 Act provided that land capable of being a common should be registered or cease to be a common, and similarly with rights of common, they should be registered or cease to exist, the operative date being 31 July 1970.

The purpose of the 1965 legislation was to create a conclusive, definitive, and final record of commons and rights of common, so that everybody would know exactly where they stood. However, since 1970 new issues have arisen:

• Can new or different rights be registered in respect of a registered common?

• Suppose land could have been registered in 1965-1970 but for some reason was not registered?

• Suppose rights could have been registered in 1965-1970 but for some reason were not registered?

• Can land become a 'new' common since 1965-1970? and

• Can rights of common be registered in a 'new' common?

These issues were discussed in R (Littlejohn) v Devon County Council [2016] EWCA Civ 446, [2016] 3 WLR 743. The facts were that land was registered as a common 31 July 1970 but the rights of cattle and sheep to graze on the common were not registered, apparently by oversight or mistake or misunderstanding. The Court of Appeal held that no new rights of common could be registered on a registered common, whenever those rights were alleged to have been created. The 1965 principle of finality and certainty applied. It would be possible for the landowner to grant a licence to graze to the cattle and sheep owner, but not a right.

Blackacre

The land was registered as a common under the 1965 Act, as were the rights of common (and public access Countryside and Rights of Way Act 2000 Parts I and II ss 1-46, and management Commons Act 2006 Part 2 ss 26-37). A classic situation giving no difficulty.

Whiteacre

The same situation as Blackacre, save that the owner of the rights of common, to graze cattle and sheep, applies to vary the rights by having more sheep and less cattle and to change that part of the common where they may graze. This is possible provided that the burden of the right to graze is not increased upon the owner of the land Commons Act 2006, section 7.

Greenacre

Greenacre was registered as a common under the 1965 Act, but rights of common existing at the time for some reason were not registered as they could and should have been. No rights of common, whenever they are alleged to have arisen, may now be registered. If some rights of common were registered under the 1965 Act no new rights of common may now be registered, whenever alleged to have arisen, Commons Act 2006, section 6.

Blueacre

Blueacre is not registered as a common. Blueacre was capable of being registered immediately before 31 July 1970 but for some reason was not. Too late, it 'missed the bus' and the chance to register was lost for ever.

Redacre

Immediately before 31 July 1970 Redacre was not a common and not capable of being so, and was not registered as such. Since 31 July 1970, now over 45 years ago, it has become a common and rights of common have grown up. Is it now possible to register a new common with new rights of common? Can such rights arise by deed or by 20 years prescription?

If all the necessary elements of a common and rights of common can be proved to exist, and came into existence by deed or prescription since 31 July 1970, then registration as a new common and new rights of common is possible, subject to any specific statutory exception; thought the right to create a right of common by prescription (not be deed) will cease to exist in future, Commons Act 2006, section 6, and Lewison LJ in Littlejohn paras 132-134 and 142.

Alec Samuels is a barrister and former reader at Southampton University