Environmental management of common land: Towards a new legal framework?

Journal of Environmental Law

Volumn 11, Issue 2, 1999, Pages 231-255

  Rodgers, Christopher P ^a,b  

^a ABERYSTWYTH UNIVERSITY   (United Kingdom)

^b UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

COMMON LAND; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL MANAGEMENT; LEGISLATION;

ENGLAND; UNITED KINGDOM; WALES;

EID: 0033391883     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/11.2.231     Document Type: Article

References (82)

1. See generally, J.W. Aitchison, 'The Commons and Wastes of England and Wales 1958-1989', Area (1990) 22:3, 272-7. Also, Common Knowledge . . . ? (Countryside Commission, 1990). The Countryside Commission statistics set out in their 1990 fact sheet are drawn from the national database collated (on behalf of the Commission) by the Rural Surveys Research Unit, University of Wales, Aberystwyth. For more recent statistics specifically on Town and Village Greens see, J.W. Aitchison, 'The Town and Village greens of England and Wales', (1996) Landscape Research, 21, 89ff.
2. See generally, J.W. Aitchison, 'The Commons and Wastes of England and Wales 1958-1989', Area (1990) 22:3, 272-7. Also, Common Knowledge . . . ? (Countryside Commission, 1990). The Countryside Commission statistics set out in their 1990 fact sheet are drawn from the national database collated (on behalf of the Commission) by the Rural Surveys Research Unit, University of Wales, Aberystwyth. For more recent statistics specifically on Town and Village Greens see, J.W. Aitchison, 'The Town and Village greens of England and Wales', (1996) Landscape Research, 21, 89ff.
3. See generally, J.W. Aitchison, 'The Commons and Wastes of England and Wales 1958-1989', Area (1990) 22:3, 272-7. Also, Common Knowledge . . . ? (Countryside Commission, 1990). The Countryside Commission statistics set out in their 1990 fact sheet are drawn from the national database collated (on behalf of the Commission) by the Rural Surveys Research Unit, University of Wales, Aberystwyth. For more recent statistics specifically on Town and Village Greens see, J.W. Aitchison, 'The Town and Village greens of England and Wales', (1996) Landscape Research, 21, 89ff.
4. The classification of common rights is a subject of considerable complexity, a full discussion of which is beyond the scope of this paper. For a definitive account see, G.D. Gadsden, The Law of Commons (1988) at 1.44 ff and 3.26ff.
5. This means that they can be transferred separately from, and without, the dominant tenement. Rights in gross cause particular problems in establishing management schemes on common land, and are (fortunately in this regard) uncommon.
6. See further, Gadsden, op cit at 1.59 and 3.97ff.
7. The commons registration authorities were the Country Councils, or County Boroughs, for the area in question, and in London the Greater London Council: Commons Registration Act 1965, s 2(1).
8. This research is being carried out for DETR by the Rural Surveys Research Unit, University of Wales, Aberystwyth. At the time of writing, the latest statistical data and research findings had not been completed. This research is ongoing.
9. Good Practice Guide an Managing the Use of Common Land (Department of the Environment Transport and the Regions, 1998) at 5. Given the expansion of the SSSI network in the last ten years, when accurate statistics are available (see n 1 above) it is likely that this figure will prove to be a conservative estimate. A considerable number of new SSSI notifications, especially in the uplands, include areas of common land.
10. Directive 92/43 on the conservation of natural habitats and of fauna and flora, [1992] OJ L206/7.
11. Directive 79/409 on the conservation of birds, [1979] OJ L103/1.
12. Common Knowledge, op cit, Appendix.
13. See, Department of the Environment Transport and the Regions, Consultation Paper, Sites of Special Scientific Interest Better Protection and Management (DETR, September 1998) at para C.33.
14. Sites if Special Scientific Interest: Better Protection and Management, ibid, Proposal 18.
15. Common Land: The Report of the Common Land Forum (Countryside Commission, 1986).
16. The Countryside Commission published a position paper in early 1998 advocating limited reforms to the legislation governing the management of land use on Commons. Common Land and Village Greens: Commission Palicy on Legislative and Other Needs (Countryside Commission 98/4).
17. See article 4 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora.
18. See arts 6(3) and 6(4) of Directive 91/43, op cit.
19. SI 1994/2716.
20. See, for instance, S. Ball, Reforming the Law of Habitat Protection, Ch 4 in Rodgers (ed), Nature Conservation and Countryside Law (University of Wales Press, 1996).
21. See C.P. Rodgers and J.M. Bishop, Management Agreements for Promoting Nature Conservation (London: Royal Institution of Chartered Surveyors, 1998) Ch 4.
22. Hereafter collectively referred to as 'the Councils'. The former functions of the Nature Conservancy Council as to the notification and supervision of SSSIs were reallocated by Part VII Environmental Protection Act 1990 to three new regional councils for England, Wales and Scotland - English Nature, the Countryside Council for Wales and Scottish Natural Heritage. There is no common land in Scotland, and the discussion in this paper is therefore limited to the law in England and Wales.
23. [1992] 3 All ER 481.
24. The current practice of English Nature and CCW in this regard is based upon a statement made in the House of Lords on 17.10.90 by Baroness Blatch, to the effect that in the (then) Nature Conservancy Councils view both Countryside Act 1968, s 15, and Wildlife and Countryside Act 1981, s 28, cover crofters and holders of common rights (Nature Conservancy Council PPG 4/91).
25. This is recognised in the Current DETR Consultation on the SSSI legislation; see Sites of Special Scientific Interest: Better Protection and Management (DETR, 1998), para C.33.
26. Section 28(4)(b), ibid.
27. Section 28(5), ibid.
28. See, Commons Registration Act 1965, s 13, and the Commons Registration (General) Regulations 1966, SI 1966/1471.
29. See, Town and Country Planning Act 1990, s 329, applied by the Wildlife and Countryside (Service of Notices) Act 1985. The 1985 Act repealed the former power in Wildlife and Countryside Act 1981, s 28(3), and replaced with the more detailed requirements for ex parte notification found in the planning legislation.
30. This practice is widespread, although being of questionable legality in the majority of cases; see G.D. Gadsden, The Law of Commons (1988) at 6.23-6.30.
31. See, Gadsden at 4.10, 4.11, and J. Aitchison and G.D. Gadsden in W. Howarth and C.P. Rodgers (eds), Agriculture Conservation and Land Use (University of Wales Press, 1992) at 174.
32. Bettinson v Langton [1999] 2 All ER 367.
33. See, Gadsden at 3.43, 3-44, and Aitchison and Gadsden, ibid at 174.
34. See, Gadsden at 1.59 and 1.75.
35. See generally, Common Land: The Report of the Common Land Forum (Countryside Commission, 1986).
36. This was one of the principal deficiencies of the 1965 Act identified by the Common Land Forum, and undoubtedly led to inflated numbers of rights being registered for some commons: Report of the Common Land Forum, ibid at paras 15-18. The Common Land Forum recommended that registrations should be reopened in appropriate cases so that registrations could take account of the carrying capacity of the common.
37. A vote of the majority in value of commons rights represented at the meeting is needed to enact regulations binding on all commoners: Commons Act 1908, s 1.
38. Meetings are convened by the Secretary of State, on the application of three or more commoners, or of the county council or metropolitan distract concerned, and rules for the conduct of meetings and the calculation of interests are laid down in the Commons Rules 1966 (SI 1966/96).
39. See, SI 1982/209, and G.D. Gadsden, The Law of Commons, op cit at Appendix 6.
40. See, National Trust Act 1907, s 29; National Trust Act 1971, s 23; and also n 49 below for their relevance to the problem of fencing open commons.
41. Dartmoor Commons Act 1965, s 5.
42. See, White v Taylor No 2 [1969] 1 Ch 160, for those rights which might be considered ancillary.
43. Common Land and Village Greens: Commission Policy on Legislative Needs (Countryside Commission 98/4), 1998 at J3, p 13.
44. Earl de la Warr v Miles [1881] LR ChD 535, per Bacon V-C.
45. See White v Taylor (No 2) [1969] 1 Ch 160.
46. The view that they are is canvassed by Gadsden, op cit at 8.06.
47. That is, under the Prescription Act 1832 or the doctrine of lost modern grant.
48. See Gadsden, op cit at 3.65, 3.66.
49. See generally, Gadsden, op cit, Ch 9.
50. Law of Property Act 1925, ss 193 and 194.
51. These problems were recently highlighted in National Trust v Ashbook [1997] 4 All ER 76, in which the National Trust's powers to introduce fencing under an environmental management scheme on common land in their ownership were examined. The Trusts powers as to fencing on common land are set out in National Trust Act 1907, s 29 and National Trust Act 1971, s 23, under which it has to show that a 'public benefit' will accrue before the Secretary of States consent can be obtained. The necessary public benefit was here found in the nature conservation benefits offered by the scheme in question. Because of the distinctive statutory regime applicable to National Trust land, however, the decision cannot be regarded as of wider import.
52. The principal schemes of relevance administered by MAFF are the Environmentally Sensitive Areas programme, and Countryside Stewardship. Both schemes offer management agreements for land management in the interests of conservation.
53. This problem is acknowledged by the Countryside Commission's position paper, Common Land and Village Greens: Commission Policy on Legislative Needs (98/4) at para 9.
54. See, Good Practice Guide on Managing the Use of Common Land (DETR, June 1998) at 31ff, and Appendx 1; which sets out a model Constitution for a Commons Association.
55. That is, under Wildlife and Countryside Act 1981, s 28(5).
56. See, Good Practice Guide on Managing the Use of Common Land (DETR, 1998) at Appendix 4; 'MAFF Guidelines for Joint ESA Agreements with Commoners'.
57. See, Good Practice Guide on Managing the Use of Common Land (DETR, 1998) at Appendix 4; 'MAFF Guidelines for Joint ESA Agreements with Commoners'.
58. See, Agriculture Act 1986, s 18(1).
59. MAFF Guidelines, op cit, para 3.
60. Ibid, para 6(iii).
61. That is, Countryside Act 1968, s 15.
62. That is, under the MAFF Guidelines for Joint ESA Agreements with Commoners, above n 52.
63. Environmentally Sensitive Areas and Other Schemes under the Agri-Environment Regulation (second report, Agriculture Committee, House of Commons, Vol 1, para 92 at xxviii).
64. Common Land and Village Greens: Commission Policy on Legislative and Other Needs (Countryside Commission 98/4, 1998) at para 14 and Annex 1, paras J5-J8.
65. Report of the Royal Commission on Common Land (Cm 562, 1958) at para 258.
66. Common Land: The Report of the Common Land Forum (1986) at Appendix 3, paras 95, 96.
67. Though widespread this practice is of dubious legality, see above n 26.
68. Common Land and Village Greens: Commission Policy on Legislative and Other Needs (Countryside Commission 1998) para G1-4.
69. Common Land and Village Greens: Commission Policy on Legislative and Other Needs, op cit at Annex 1, para. J9.
70. Council Regulation (EC) 3013/89 art 5a(1), and Council Regulation (EC) 805/68 art 4d(2) as amended by Commission Regulations (EC) 3886/92 and 3567/92.
71. 'Grazing land with livestock in such numbers as adversely to affect the growth, quality or species composition of vegetation (other than vegetation normally grazed to destruction) on that land to a significant degree', Sheep Annual Premium and Suckler Cow Premium Quota Regulations 1997, SI 1997/2844, Reg 2. Similar provisions apply to Hill Livestock Compensatory Allowances and Beef Special Premiums.
72. See further, Commission Regulation (EC) 1303/97 (sheep quota usage rules); Commission Regulation (EC) 2311/96, amending Commission Regulation (EC) 3886/92 art 33(2) (Suckler cow premiums).
73. See SI 1997/2844, Sched 3, Part 1, Category 1 (participants in environmental schemes to be priority claimants on the national reserve for both sheep annual premium and suckler cow premium quotas).
74. This is because Limitation Act 1980, s 38, excludes incorporeal hereditaments from the definition of 'land'. This has the effect of excluding the usual rule (s 15, ibid) viz, that no action to recover land can be brought after 12 years adverse possession by another.
75. See, Tehidy Minerals Ltd v Norman [1971] 2 QB 528, and Re Yately Common Hampshire [1977] 1 WLR 840.
76. Sec further, the Commons Commissioners decisions (otherwise unreported) discussed in Gadsden, op cit at 153-4.
77. This argument is developed persuasively, for example, by Gadsden, op cit at 234-5.
78. Common Land: The Report of the Common Land Forum, op cit at para 28.
79. De-registration of unused rights of pasturage should not be confused with the cancellation of the registration of land as common land. At present, a registration of common land can be cancelled if there cease to be any rights of common exercisable over it. The Countryside Commission has estimated that 65% of registered common land in England has no remaining rights of common, and is therefore at risk of de-registration: see Common Land and Village Greens: Commission Policy on Legislative and Other Needs, op cit, Annex 1 at D1-D3. If the land is de-registered the public may lose rights of open access, and the legal controls on fencing and works cease to apply. For this reason the Countryside Commission continues to seek removal of the power to de-register common land. This is a separate issue to that addressed above, namely the de-registration of unused common rights which, though unused, have the potential to impede the establishment of environmental schemes on common land.
80. See para 28, ibid.
81. Sites of Special Scientific Interest: Better Protection and Management (DETR, September 1998) at C-33, and Proposal 18, above n 9.
82. See most recently, Common Land and Village Greens: Commission Policy on Legislative Needs, op cit at Annex 1, paras F3, J9.