Common Lands

Domestic Records Information 74

1. Common Land

It is a popular misconception that common land is land owned by the general public and to which everyone has unrestricted right of access. All common land is private property, whether the owner is an individual or a corporation. The owner of the common is normally the lord of the manor or his successor in title. Many commons are, in fact, owned by local authorities, the National Trust and other bodies for the public benefit, but not all commons offer total access to all comers. Under the Countryside and Rights of Way Act 2000 (Popularly known as 'CRoW'), there is a new right of public access to open country and registered common land, subject to certain defined restrictions.

Records held in The National Archives may provide information of two kinds about common land:

• records relating to the preparation, passage and implementation of legislation regulating common lands (including policy as well as material relating to particular areas of common land), mainly dating from the mid-nineteenth to the mid-twentieth centuries
• records concerning the tenure and use of land which may contain information which has a bearing on historic rights of common in particular places

This research guide indicates some of the principal record sources in both categories. It is not a statement of law, and The National Archives cannot give legal advice or offer any interpretation of the potential evidential value of information contained in the records.

2. Rights of Common

'Common' in this context refers, strictly speaking, to rights rather than to lands. Common land is land subject to rights of common, i.e. rights enjoyed by one or more persons to take or use part of a piece of land or of the produce of a piece of land which is owned by someone else. Those entitled to exercise such rights were called commoners. Sometimes commoners sold or otherwise disposed of their rights. Such transactions were usually private agreements and as such are not usually among records held in The National Archives.

Such rights are separately defined in each case. Ancient rights of common were usually of five kinds, although there were others:

• of pasture: the right to graze livestock; the animals permitted, whether sheep, horses, cattle, etc, were specified in each case.
• of estovers: the right to cut and take wood (but not timber), reeds, heather, bracken, etc.
• of turbary: the right to dig turf or peat for fuel.
• in the soil: the right to take sand, gravel, stone, coal, minerals, etc.
• of piscary: the right to take fish from ponds, streams, etc.

These rights related to natural produce, not to crops or commercial exploitation of the land. They were almost always subject to limitations as to quantities (usually enough for the domestic needs of the commoner) and sometimes as to season (e.g. not during game-breeding periods). In modern times, rights have been defined in terms of intangibles such as access to light, air, recreation, etc.

3. Regulation of Commons: records in The National Archives and elsewhere

A long succession of Acts of Parliament governed the regulation of commons between the mid-nineteenth and the mid-twentieth centuries. The most important of these, with references to series of related records held in The National Archives, are:

• Enclosure Acts 1845 to 1899: awards of regulation in MAF 1
• Metropolitan Commons Acts 1866-98: schemes of regulation in MAF 4
• Commons Acts 1876 and 1899: schemes of regulation in MAF 30 , HLG 65 (after 2 February 1959), and BD 3 (Wales after 1964)
• Corporation of London (Open Spaces) Act 1878: bye-laws in WORK 16
• Commonable Rights Compensation Act 1882: records in MAF 2
• Law of Property Act 1925: declarations and limitations in MAF 3 , HLG 59 (after 2 February 1959) and BD 1 (Wales after 1965)

There were also numerous local Acts.

The resultant confusion led in 1955 to the setting up of a Royal Commission on Common Lands. The records of the Commission are in MAF 96 : they include a substantial number of files of evidence which often contain information about the history of individual commons as well as material on general issues relating to commons. The Commission's Report led to the Commons Registration Act 1965 which provided for the registration of common land and of town and village greens. The registers were to be maintained by county councils. Registration began on 2 January 1967. The Commons Registration (Time Limits) Order 1966 provided that registration should take place by 31 March 1970; this was extended by an Amendment Order to 31 July 1970. These registers are now normally in local record offices.

In addition, the Countryside and Rights of Way Act 2000, (CRoW) requires the Countryside Agency and the Countryside Council for Wales respectively to prepare for England and Wales maps showing all registered common land and all open country. These maps, to be produced in draft, provisional and conclusional stages, are or will be held by local authorities.

4. Other Sources of Information About Commons in The National Archives

Many commons were defined or affected by enclosure awards. In this connection, statements of claims, valuers' awards, etc. are in MAF 24 . A separate National Archives research guide about Enclosure Awards is available.

Several returns of common lands were made for Parliament. The most important of these was the so-called Common Lands Census of 1873-4 which was published as House of Commons Sessional Papers 1874 lii 383. Earlier, a return of commons within a 25-mile radius of central London had been published as House of Commons Sessional Papers 1865 xlvii 757. The original returns submitted for the latter survey are among the records of the Ordnance Survey (OS 25 ). The maps annexed to these returns are very fragile and will not be available until conservation work has been carried out.

The most substantial qualities of records in The National Archives relating to common land are among the records of the Agriculture, Fisheries and Food Departments (MAF ), especially the division Records of Land Tenure, Enclosure Copyhold and Tithes, and Land Use and Improvement. The principal series of registered files relating to commons is MAF 25 ; many of these files include accounts of the history of particular commons, draft orders, maps, etc. Files about general policy affecting commons are in MAF 48 . The records of Ministry of Agriculture, Fisheries and Food Divisional Offices (MAF 145 to MAF 149 , MAF 157 , to MAF 182 ) may also include files about commons. For other records of the Agricultural departments. Files of the Ministry of Land and Natural Resources relating to the registration and maintenance of common land, 1960-1971, are in JH 8 .

Many areas of common land were requisitioned for agricultural or military use during the Second World War. A schedule of such lands is in MAF 143/49 . Files about general policy and individual cases are in AIR 2 , MAF 48 , MAF 145-MAF 149 , MAF 157-MAF 182 , WO 32 .

The records of the Forestry Commission include many references to common lands in forests. The New Forest Claims Act 1854 provided for the registration of common rights in the Forest: the registers created under the Act are in LRRO 5/20 and LRRO 5/23 ; a printed version is at F 24/107 . Not until the passing of the New Forest Act 1949 were maps made to show the lands subject to common rights. These plans are 1:2,500 Ordnance Survey maps, marked up in manuscript. Similar plans were later made relating to the areas added to the Forest by the New Forest Act 1964. All these plans are in MPO 1 (formerly in F2).

Records of the commissioners appointed under the Epping Forest Act 1871 to enquire into rights and claims over the forest, and some records of the Arbitrator appointed are to settle disputed matters arising from the provisions of the Epping Forest Act 1878, are in WORK 9 .

Some papers about commons are among the records of the Treasury Solicitor (TS 18 ).

Official notices of intent to regulate, register, etc. were usually published in the local press and the London Gazette (ZJ 1 ). Earlier reports on applications, certain special reports on the regulation or enclosure of commons, and Bills to confirm Provisional Orders and Schemes, have been published for Parliament.

Further information about particular areas may sometimes be found in manorial records. Documents in The National Archives include large quantities of such records relating to the estates of the Crown over many centuries, as well as some records of privately-owned manors submitted as evidence in equity proceedings, particularly in the Court of Chancery. For further information, see Manorial Records in the Public Record Office, Manor and Other Local Court Rolls, 13th century-1922, and Chancery Masters' and Other Exhibits: Sources for Social and Economic History

5. Public and private bodies concerned with common land

The 1965 Act gave the Lord Chancellor the power to appoint Commons Commissioners with arbitration functions. It should be noted, however, that the Commissioners have no power to intervene in registrations and deal only with matters referred to them by the Commons Registration Authorities (usually local government authorities). They are not empowered to offer advice or to become involved in general administrative or management matters relating to common land – for example, illegal occupation or trespass. Detailed guidance on their functions is provided by the Commons Commissioners Regulations 1971. The contact address for further information is:

CYD(3) Division
zone 1/05
Temple Quay House
2 The Square
Temple Quay
Bristol
BS1 6EB

Tel: + 44 (0) 0117 372 8973
Fax: + 44 (0) 0117 372 8969
Email: commons.commissioners@defra.gis.gov.uk

The principal pressure group and dispenser of general advice on the subject is:

Open Spaces Society
25a Bell Street
Henley-on-Thames
Oxfordshire RG9 2BA.

Tel: + 44 (0) 1491 573 535
Email: hq@oss.org.uk
Web: www.oss.org.uk/

The Manorial Documents Register, maintained by The National Archives, records the whereabouts of manorial records (excluding title deeds). For further information, see www.nationalarchives.gov.uk/mdr/, or contact:

The National Archives,
The National Archives,
Kew,
Richmond,
Surrey,
TW9 4DU

Tel: + 44 (0) 20 8876 3444
Fax: + 44 (0) 20 8392 5286
Email: mdr@hmc.gov.uk (a designated address for enquiries relating to the Manorial Documents Register)

Records relating to acquisition and subsequent management of Epping Forest and other open spaces by the Corporation of London under the City of London (Open Spaces) Act 1978, are held by the Corporation of London Records Office.

Corporation of London Records Office
PO Box 270
Guildhall
London EC2P 2EJ

Tel: + 44 (0) 20 7332 1251
Fax: + 44 (0) 20 7710 8682
Email: clro@corpoflondon.gov.uk
Web: www.cityoflondon.gov.uk/leisure_heritages/libraries_archives_museums_galleries/clro/about_clro.htm

Statutory copies of the maps made under the New Forest Acts 1949 and 1964 are held by:

Clerk to the Verderers
Queens House
Lyyndhurst
Hampshire SO43 7NH

Tel: 023 8028 2052
Fax: 123 8028 3101
E-mail: clerk@verderers.org.uk
Web: www.verderers.org.uk

6. Further Reading

Information about the Countryside and Rights of Way Act 2000, with links to the online text of the Act and to a variety of information research guides and guidance notes is available on the website of the Department for Environment, Food and Rural Affairs (DEFRA), at www.defra.gov.uk/wildlife-countryside/cl/

Information about mapping under the Act, undertaken by the Countryside Commission, is available on the Commission's website at www.countryside.gov.uk/access/mapping/.

A useful, if now somewhat outdated general book on the history of common land is Dudley Stamp & W G Hoskins, The Common Lands of England and Wales (London, Collins, 1963).

(ri2181) Last updated: 22 July 2004 | © Crown Copyright 2004