Common land is, for the most part, privately owned land on which the general public has the legal right to walk. Other people may also have ‘rights of common’ over the land, such as the right to graze cattle, sheep or other animals.
According to the Open Spaces Society, there are 1.3m acres of common land across England and Wales – 88% of which enjoy a national or international designation for wildlife, landscape or archaeology.
While grazing rights have significant sustainability and conservation benefits for common land, they do restrict what landowners can do with the land. Similarly, those entitled to exercise graziers’ rights - or any other right of common - must not abuse or exceed their rights.
The legal framework
Common land should be registered in a register of common land (kept under Part 1 Commons Act 2006). The land may be owned by individuals, or the local authority, English Heritage or the National Trust.
Also, all grazing rights over land registered as common land must be registered, otherwise they cannot be exercised (the Commons Registration Act 1965). This applies even where grazing rights (and other rights of common) may have been exercised for generations, because the court has confirmed that such ‘prescriptive’ rights of common can no longer be exercised (as held by the Court of Appeal in Littlejohns v Devon County Council (2016)).
A formal search of the registers will identify whether land is currently registered as common land; and also subject to registered grazier rights.
Disputes
Common land and grazier rights can be crucial to agricultural livelihood and to sustainability of the land. But where the rights of a landowner and the grazier rights of a third party clash, a disagreement can quickly arise.
These disputes can be complex and difficult to resolve, partly because of ambiguities in the legal framework which have not yet been fully clarified and the interaction between statute and common law. The specialist property litigation team at mfg Solicitors are experienced in advising parties in disputes involving grazier rights and other common rights.
Owners of common land that is subject to grazier rights must not interfere with, or restrict a person’s ability to exercise their grazing rights. For example, the landowner may not be able to build homes on the land or otherwise develop it.
Those with the benefit of grazier rights must be careful not to graze more livestock than they have rights to graze, or exceed their rights by, for instance, removing timber from the land and selling it on.
How we can help
If you are the owner of common land; or you enjoy grazing rights which are being curtailed, it is important to speak to specialist property litigation specialists. Our team is experienced in disputes involving common land, grazier rights and other rights of common.
Contact Kirsten Bridgewater, a partner in the team on 01905 610410, or email kirsten.bridgewater@mfgsolicitors.com.