Registered common rights and who holds them

Rights of common are recorded in a public register held by the commons registration authority, which is the county council or unitary authority for the area. Anyone can search it. The register tells you which land is registered common land, what rights exist over it, how many animals or how much material each right allows, and which land or person holds the right. For a rural owner that register decides a great deal, because registered common land cannot be fenced, built on or resurfaced without consent from the Secretary of State.

What the registers record

Registration began under the Commons Registration Act 1965, which required common land, town and village greens and rights of common to be registered within a set period. Rights not registered in that window were extinguished. Land not registered ceased to be common land. That cut-off is the single most important fact about the system, and it means the register is close to definitive rather than merely indicative.

The Commons Act 2006 modernised the arrangements, allowing registers to be corrected and updated, providing for new registrations in defined circumstances and dealing with land that was wrongly registered or wrongly left out.

Each registered unit has three sections.

• The land section, describing the extent of the common with a register map.
• The rights section, listing each right of common, its nature, its extent and the land or person to which it attaches.
• The ownership section, recording the owner of the soil where that is known.

The ownership section is often blank. A common with no recorded owner is not ownerless in law, and the absence of an entry simply means nobody proved title during the registration process.

Reading an entry

The rights section is where the detail sits, and the entries use old vocabulary.

Grazing rights are usually quantified in livestock units, with the number registered in 1970 fixed by that registration. Historically rights were limited by the land's capacity to support animals through the winter, and registration converted that into a figure.

Rights are held in one of two ways. Appurtenant rights attach to a particular piece of land, and pass automatically with it. Rights in gross attach to a person and do not depend on owning any land at all. The register says which.

Check the entry and the register map together. The entry describes the right, the map describes the land over which it is exercisable, and disputes are usually about the map.

Effect on development and on fencing

Section 38 of the Commons Act 2006 prohibits restricted works on registered common land without consent. Restricted works include fencing, buildings, other structures, works that prevent or impede access, and in most cases new solid surfaces.

Applications go to the Secretary of State and are handled by the Planning Inspectorate. The process involves public notice, consultation with any commoners association, Natural England and the Open Spaces Society, and a written representations procedure or, in contested cases, a hearing or inquiry.

Two points follow that catch owners out. Section 38 consent is separate from planning permission and neither substitutes for the other, so a project on common land needs both. And temporary works count. Fencing erected for a season, a compound for a construction project, or a track laid for access all fall within the restriction.

Registered common land in England is also access land under the countryside access legislation, so the public has a right of access on foot. That right and the rights of common are separate things, and removing one does not remove the other.

The interaction between private rights recorded in a register and public planning control is much the same as the one described in restrictive covenants compared with planning rules. Planning permission does not override a private right, and a private right does not defeat the need for permission.

Severance, dormancy and lost rights

Before 2006 it was possible in some circumstances to sever a right of common from the land it attached to and deal with it separately. The Commons Act 2006 generally prohibits severance, with limited exceptions, so an appurtenant right now moves with the land.

Dormant rights are the practical problem. A right registered in 1970 that nobody has exercised for fifty years still exists. It has not lapsed through non-use, and the holder can begin exercising it. On a common where grazing has ceased entirely, the sum of registered rights may far exceed what the land could now support, which makes any management scheme difficult to agree.

That matters for anyone planning to change how a common is used. A scheme agreed with the three people who currently graze can be objected to by twenty registered rights holders who do not.

Where the land is agricultural and quality is in issue, an Agricultural Land Classification survey may also be needed, and councils usually expect a soil scientist to carry that out.

Deregistration and exchange

The 2006 Act provides a route to remove land from the register, generally requiring replacement land to be offered in exchange. The exchange land must be at least as advantageous to the public and to the rights holders for area, quality, location and access.

That is a demanding test and the applications are not quick. Expect consultation, objections from user groups, and a decision by the Planning Inspectorate on behalf of the Secretary of State. Budget in years rather than months where any part of the proposal is contested.

The 2006 Act also allows correction of the register where land was wrongly registered or wrongly omitted. Those provisions are narrower than they sound and have their own evidential requirements.

Due diligence at acquisition

Five checks, and the first two cost very little.

1. Search the commons register with the commons registration authority for the area, and obtain official copies of all three sections for any relevant unit.
2. Order the optional commons registration search alongside the standard local search, since the standard search will not tell you what you need.
3. Compare the register map with the title plan, because the boundaries rarely match exactly and the difference is where the argument will be.
4. Ask whether a commoners association or a commons council exists, and if so, obtain its rules and any management agreement.
5. Check whether the land is mapped as access land, and whether any exclusion or restriction is in place.

Do the same for land adjoining your site, not just the site itself. A right of common over a neighbouring strip can control access to your land, and a registered right of way to exercise that right can cross it.

As an illustrative example, a farm sale includes 12 hectares of rough grazing that the particulars describe as owned outright. The commons register shows the parcel as registered common land, with grazing rights for 40 sheep held by four neighbouring holdings and no recorded owner of the soil. The buyer cannot fence it, cannot build on it, and cannot exclude the public. None of that appears on the title.

The wider appraisal sequence in checking a site for constraints before you make an offer should include the commons search as standard on any rural acquisition, alongside local designations such as protected verges and roadside nature reserves.

To see which supporting documents a rural proposal is likely to need, enter your postcode on PlanScope.

This is general guidance, not legal advice, so check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.