New Opportunity to Register Lost Commons

The Open Spaces Society has been defending open spaces in England and Wales since 1865.

This fact sheet is brought to you by the Open Spaces Society - We campaign for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 600 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.

New opportunity to register lost commons - introduction

1. The Commons Act 2006 provides a new, time-limited, opportunity for you to rescue some of those commons which failed to be registered under the Commons Registration Act 1965. The registers have reopened in nine pioneer areas of England, and throughout Wales, so you should start now.The English pioneer areas where the register re-opened on 1 December 2014 are Cumbria and North Yorkshire

2. The pioneer areas, where the registers re-opened on 1 October 2008, are: Blackburn with Darwen borough, Cornwall county, Devon county, Herefordshire district, Hertfordshire county, Kent county and Lancashire county.

3. An announcement is awaited from the Department for Environment, Food and Rural Affairs as to the timing of national roll-out. It is unlikely to commence before October 2020.

In Wales the opportunity to rescue lost commons commenced on 5 May 2017.

4. Residents of the English pioneer areas and Wales need to start now to identify those areas of land which qualify to be registered as commons. This factsheet is for people wishing to register land in these areas, under one of the provisions of the Commons Act 2006, namely Schedule 2, paragraph 4.

 

Why should you do this?

5. Once land has been registered as common land, it will be mapped as common in the next review of the access maps under the Countryside and Rights of Way Act 2000, and the public will gain the right to walk over the whole area, subject to any restrictions imposed by the landowner in accordance with the act. If the land is in a former borough or urban district we believe that it will immediately become subject to a right of access on foot and horseback, under section 193 of the Law of Property Act 1925.

6. Furthermore, common land cannot be developed or encroached upon without the consent of the Secretary of State for Environment, Food and Rural Affairs (in England), or the Minister for the Environment and Rural Affairs (in Wales), under section 38 of the Commons Act 2006, or without exchange land being provided under section 16 of the Commons Act 2006.

7. The land is therefore protected, and the public wins the right to walk, and in some cases to ride, there.

What land is eligible for registration?

8. Land which is waste land of the manor (Schedule 2, paragraph 4, of the Commons Act 2006). In legal terms, that is ‘the open, uncultivated and unoccupied lands parcel of a manor’. So for a start, the land must be undeveloped and unimproved. It must also be of manorial origin, although it need not be ‘of a manor’ at the present date (see paragraph 10).

9. The land then has to pass further tests.

(a) It must have been provisionally registered as common land under the Commons Registration Act 1965 (some time between 1967 and 1970). So if the land was never touched by the 1965 Act, it won’t be eligible for registration now under paragraph 4.

(b) There must have been an objection to that registration, and one or more of the following must apply:

(i) the registration was cancelled by the commons commissioner solely because the land had ceased to be connected with the manor,

(ii) the registration was cancelled by the commons commissioner because the land was not subject to rights of common, and the commissioner did not go on to consider whether the land qualified instead for registration as waste land of the manor, or

(iii) the registration was cancelled at the request, or with the agreement, of the applicant for registration.

How these circumstances came about

Cancelled by the commons commissioner because the land had ceased to be connected with the manor

10. The definition of common land in the Commons Registration Act 1965, which guided people in deciding whether to apply for registration of land, was ‘land subject to common rights…or waste land of the manor not subject to rights of common’. (Common rights include the right to graze animals, collect wood or dig peat, to name a few, and are normally connected with a property.) Applications for registration (provisional registrations) had to be made during the three-year period between 2 January 1967 and 2 January 1970. There was a period for objections. Any disputed registrations were heard by a commons commissioner whose decision was final but could be challenged in the courts.

11. In 1978, the Court of Appeal decided, in the Box Hill case (see Appendix 1), that ‘waste land of a manor’ must still be in the ownership of the lord of the manor at the time the validity of the registration was decided. This caused the commons commissioners to cancel many applications for registration of commons which were not subject to rights but were not still owned by the lord of the manor, or the applicants to withdraw their applications in anticipation of cancellation. However, in 1990, Box Hill was overturned by the House of Lords’ decision on Hazeley Heath (see Appendix 1). This held that land was waste of the manor provided it had at one time been part of the manor. This decision came too late for those applications which had been cancelled or withdrawn on the basis of Box Hill as the closing date for registrations had passed.

12. The Commons Act 2006 allows another chance for those commons to be added to the register, where it can be shown that the land is manorial in origin — even if it has long-since ceased to be owned by the lord of the manor.

Cancelled by the commons commissioner because the land was not subject to rights of common and the commissioner did not consider whether the land qualified instead for registration as waste land of the manor

13. Where none of the parties appearing before the commons commissioner argued that land not subject to rights of common might qualify as waste land, the commissioner often concluded that the registration should fail without further consideration. However, there is authority to support the view that the commissioner ought to have examined the evidence before coming to a decision in such cases.

Cancelled at the request, or with the agreement, of the applicant for registration

14. Some applications for provisional registration were withdrawn after an objection, perhaps because of the Box Hill case, or for some other reason, in advance of a hearing before the commons commissioner. Such agreements led to the commissioner cancelling the registration by consent, without the opportunity for the wider public interest to be considered. However, any disputed application that was withdrawn, whether it was referred to a commissioner or not, may qualify for registration. This includes applications that were part-withdrawn (‘modified’) or only part-confirmed by the commissioner.

How can I get this land onto the register?

15. You should inspect the common-land register which is held by your county or unitary authority (details in appendix 2). The registers are open to public inspection, but it is advisable to make an appointment. You may make copies of the registers, but if you ask the authority to make a copy it will normally charge a fee.

16. For the area which is of interest, you should make a note of all the provisional registrations which did not become final. The application and any objections are recorded in the register itself. You should note the details of these, together with the register-map sheet-number for the common land (CL) unit (which is required to be shown in the land section). Further details of the case and the decision may well be found among the original application papers, which you can ask to see. This might include the relevant decision letter(s). It might also include evidence of (past or continuing) manorial status (see paragraph 19).

17. If you cannot find the commons commissioner’s decision letter with the application papers, you can see many of the decision letters online on the Association of Commons Registration Authorities’ website

18 The decision letters will tell you whether the registration was (a) cancelled by the commons commissioner because of the Box Hill case; (b) dismissed, in the absence of common rights, without the commissioner considering whether the land was waste of a manor; or (c) referred to a commissioner, but withdrawn before it could be considered at a hearing. Note, however, that where the application was withdrawn before referral to a commissioner, there will not be a decision letter, and the common will not be eligible.

19. Evidence of manorial status may be found at the Local Record Office. The Manorial Documents Register (MDR) provides a detailed catalogue of existing manorial documents and their location. The register is maintained by the National Archives at Kew and, for some areas of the country, is available online. As stated above, you need to prove that the land was once part of the manor.

20. Steve Byrne, an Open Spaces Society supporter who has been working closely with us, has produced search sheets of some eligible areas for registration in England. Further information can be found on his website

21. You must be satisfied that the land is still open and uncultivated, so you will need to inspect it. You should also consider whether it is ‘occupied’. Note that this is a question of land use (not tenure). For example, the land may be subject to leased or tenants’ rights of grazing; but an extensive use of this kind is insufficient to constitute ‘occupation’. Provided it is open, uncultivated and unoccupied, the land will be eligible for registration.

22. Once you have gathered your evidence from the various sources that the land qualifies, you can submit your application

How do I apply to register a piece of land?

23. Obtain the relevant form from your registration authority (for some, this can be downloaded from their websites, see appendix 2.

24. You will need to provide all the information requested on the form, and to submit the evidence that the land is eligible for registration, ie that it is waste land of the manor which was provisionally registered under the 1965 act, but failed to be registered because it was either cancelled by the commons commissioner or withdrawn by the applicant.

25. You will be required to send a notice of your application to people with an interest in the land.

26. You are not required to pay a fee.

27. The registration authority will advertise your application, and you may have to place notices on the land. You may be asked to supply further information. Any representations will be copied to you for comment. Your application may be referred to the Planning Inspectorate and you may be asked to attend a hearing or public inquiry. You will receive a decision letter and, if your application is granted, the register will be amended.

28. Please inform the Open Spaces Society of your application as we are keen to monitor progress and assist our members in registering land.

Other opportunites for registration, not covered in this fact sheet

29. Land may also be added to the registers in the following circumstances:

(a) the registration authority made a mistake when making or amending an entry in the register (section 19(2)(a)), for example by mistakenly excluding from registration part of the land included in an application for registration of the land under the 1965 Act,

(b) the land was designated as common land or village green by statute but was not registered (schedule 2, paras 2 and 3), for example, it is included in a scheme of regulation and management under Part I of the Commons Act 1899.

30. Further information about these opportunities is given on our page  ‘Commons Act 2006, part 1 (registration): implementation in England’s pioneer areas and Wales, information for applicants’.

The Open Spaces Society has staff with exhaustive experience in handling matters related to our charitable purposes. While every endeavour has been made to give our considered opinion, the law in these matters is complex and subject to differing interpretations. Such opinion is offered to help members, but does not constitute formal legal advice.

© Open Spaces Society, 2019

Appendix 1 - useful information

Appendix 2 - Cornwall re-registration decisions

Land at Carrine commons, parish of Kea, Cornwall
The application was made on 15 October 2010, under schedule 2, paragraph 4 of the Commons Act 206, to add land to the register of common land.

The land is approximately 17.35 hectares in area. It is open heathland with gorse, brambles and a few scattered trees.

It is part of a site of Special Scientific Interest (SSSI), and a designated Special Area of Conservation. The land is part of the Cornwall Area of Outstanding Natural Beauty. It has been leased to Natural England since 2003 and it is intended in due course to be declared as a National Nature Reserve.

The tithe map of 1841 and various other deeds were produced to show that the land was waste land of a manor. Ordnance Survey maps from 1880 to the present day had consistently annotated the area as ‘Carrine Common’. The inspector found that at the date of application the land had all the character of waste land in that it was open, uncultivated and unoccupied except for the tenancy of Natural England, which did not involve the physical use of the land nor the exclusion of others. In addition there was no substantive evidence that the land was ever significantly different in character. The application was granted on 9 February 2012. Application reference: COM 273:

Land at Chun Downs, Parishes of Morvah, Madron, Sancreed and St Just, Cornwall
The application was made on 5 January 2012, under schedule 2, paragraph 4 of the Commons Act 2006, to add land to the register of common land.

The land is a scheduled ancient monument. It is open moorland, noted for its field systems, round-house sites and burrows, as well as Chun Castle and Chun Quoit. Chun Downs West is owned by Cornwall Wildlife Trust, Chun Down East has six owners, three of whom could not be traced. The land lies within the Cornwall Area of Outstanding Natural Beauty.

The tithe map and Apportionment for the Parish of Morvah in 1841 recorded the application land as ‘Chyowne Downs’, being used for furze and turf.

The inspector said that while grazing may take place periodically, the land does not cease to qualify as ‘unoccupied’ in this context unless there is some physical use which requires the exclusion of others. The inspector found that the land was of manorial origin, has the character of waste land and is open, uncultivated and unoccupied.

The application was granted on 11 April 2013. Application reference: COM404:

Cornwall re-registration applications

Appendix 3 - Contact details for pioneer registration authorities and Welsh registration authorities

To obtain further information or to inspect the registers, please contact the following.

Blackburn with Darwen
Commons Registration Officer
Commons and Greens
Development Control
Town Hall
Blackburn
BB1 7DY
Tel: 01254 585242
E-mail: commonsandgreens@blackburn.gov.uk
Website

Cornwall
Common land and towns and village greens
Commons and Greens Office
Circuit House
Truro
TR1 1DT
Tel: 01872 224773
Email: commonsandgreens@cornwall.gov.uk
Website

Cumbria
Commons Registration Service
Cumbria County Council
Lady Gillford's House
Petteril Bank Road
Carlisle
CA1 3AJ
Tel: 01228 221026
Email: commons.registration@cumbria.gov.uk
Website

Devon
Devon County Council
Land Charges
Devon County Council
G15
County Hall
Topsham Road
Exeter
EX2 4QD
Tel: 01392 382937
Email commons@devon.gov.uk
Website

Herefordshire
Commons Registration Office
Herefordshire Council
PO Box 4
Plough Lane
Hereford
HR4 0XH
Tel: 01432 261991
Email: commonsregistration@herefordshire.gov.uk
Website

Hertfordshire
Commons Registration Officer
Hertfordshire County Council
County Hall
Pegs Lane
Hertford
SG13 8DE
Tel: 01992 555279
Email: commons&greens@hertscc.gov.uk
Website

Kent
Commons Registration Officer
Kent County Council
Countryside Access Service
Invicta House
County Hall
Maidstone
ME14 1XX
Tel: 0845 3450210
E-mail: commons.villagegreens@kent.gov.uk
Website

Lancashire
Commons Registration Authority
County Secretary and Solicitor's Group (Ref: LSG4)
Lancashire County Council
P.O. Box 78
County Hall
Preston
PR1 8XJ
Tel: 01772 530541
Email: commonsandgreens@lancashire.gov.uk
Website

North Yorkshire
Business and Environmental Services
Common Land & Village Green Registration
County Hall
Northallerton
DL7 8AD
Tel: 0845 241 1307
Email: commons.registration@northyorks.gov.uk
Website

Welsh Registration Authorities

There are 22 registration authorities in Wales and contact details are available here

Further resources about the New Opportunity to Register Lost Commons

  • Commons Act

    The Commons Act 2006 is arranged in five parts: registration, management,  works, miscellaneous, finally supplementary and general.

  • Common land training course

    Our full-day training course will provides an introduction to commons and why they are important, including relevant legislation.

  • How to take action against unlawful encroachments and works

    This fact sheet tells you how to protect your common from unlawful encroachments and works in England.

  • Vehicular access across Common Land and Town or Village Greens

    This provides guidance about vehicular access across common land and town or village greens following the repeal of section 68 of the Countryside and Rights of Way Act 2000.

  • Works on common land in Wales

    A practical guide for those wishing to carry out a lawful operation on a common and those who want to defend a common against unlawful or undesirable operations in Wales.

  • A Common Purpose Guide

    Download the Foundation for Common Land guidance on how to engage with local communities for those contemplating management on common land.

  • An approach to the re-registration of commons

    Our commons re-registration officer Dr Frances Kerner shares our approach to research and application preparation

  • A commons’ conference campanion

    The Countryside and Community Research Institute of Gloucester University (CCRI) has published a Commons e-book

  • DIY guide to registering lost commons

    The Commons Act 2006 provides a new, time-limited, opportunity for you to rescue some of those commons which failed to be registered under the Commons

  • Buildings, fences and other works on common land in England

    A practical guide for those wishing to carry out a lawful operation on a common and those who want to defend a common against unlawful or undesirable operations. 

  • Commons Act 2006 Part 1 Implementation

    A pioneer implementation of Part 1 of the Commons Act 2006 commenced in seven registration authorities in England on 1 October 2008.

  • Frequently Asked Questions: Commons

    Frequently asked questions about commons

  • Unclaimed land and adverse possession

    Unclaimed land and adverse possession: protecting commons and other open spaces with no known owner

  • Finding common ground

    Integrating local and national interests on commons: guidance for assessing the community value of common land

New Opportunity to Register Lost Commons

The Open Spaces Society has been defending open spaces in England and Wales since 1865.

This fact sheet is brought to you by the Open Spaces Society - We campaign for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 600 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.

1. The long-standing problem of encroachments

1.1 Open land beside our roads has always been vulnerable to encroachment and the society was involved from its start in 1865. Take two encroachment cases, from north and south.
1.2 A Yorkshire writer in 1889 lamented the ‘poor, cramped appearance, narrow and confined irregularities’ of the road from Easingwold to Northallerton, due to ‘adjacent property owners having annexed the rich green borders with which it was once margined’. That probably occurred before the society’s formation.
1.3 In Hertfordshire in 1867 the young society showed its teeth in a delicious battle of landowning Titans. Lord Salisbury fenced in a strip of roadside waste; Lord Cowper (whose access was obstructed) acting on the society’s advice ‘collected a large body of tenants and labourers who under his personal superintendence removed the whole of the fences in one night’.
1.4 The young George Shaw-Lefevre, the society’s founder and later its president and chairman, was obviously behind this; he had already dealt with a roadside encroachment near his home at Ascot and the thing rankled until much later when, as an MP and minister, he saw to it that the protection of roadside wastes became an express task of the new county councils in 1888 and the new district and parish councils in 1894.
1.5 Before the war the society published a pamphlet, Roadside Wastes, by the late W R Hornby Steer, MA LLB, its standing counsel. This appeared first as an article in the society’s Journal in July 1936, was revised in 1946 and again in 1994, and subsequently published as an information sheet, Highway Verges l. It drew on long experience and quoted at length from leading judgments in the courts. The availability now of detailed legal commentary in the society’s book Rights of Way(1)—a guide to law and practice enables this briefing to take a different approach. It complements the book throughout but a few specific references have been given.

(1) John Riddall and John Trevelyan, 4th edition, 2007

 

2. A road is wider than its maintained carriageway

2.1 Where a road runs between enclosed properties there is usually on each side of the hard carriageway a strip of land which, physically at least, is open to the public. The strip may be occupied by a pavement, or carriageway widening may have reduced it to a mere vestige.
2.2 But in typical landscape we can enjoy two grass verges. They may be uni-form in width for long stretches, or the back boundary can be irregular and full of variety. The eye of an archaeologist or the patience of a local historian may be needed to say why any particular strip of verge has its own special width and shape, and when its back boundary came to be what it is—a bank, a hedge, a field wall or the wall of a building.
2.3 Where the road runs through land that is not enclosed, there may be nothing to show how much of the adjoining land belongs to the road. Quite probably none of it does unless proved otherwise (see paragraphs #34 and #35 below).

3. A road has to accommodate all its lawful users

3.1 What we now call a road is usually a route intended for multiple uses: for walking, riding or driving stock, and for wheeled traffic. Only ‘special roads’, especially motorways, or roads subject to a traffic regulation order, are restricted.
3.2 That was not always so. Many highways that were called roads were not used, intended or even practicable for wheeled traffic. The very names ‘drove road’ and ‘packhorse road’ illustrate this. There was not much wheeled traffic until at most 250 years ago and then only on particular roads. A bridleway could be called a road. It is an anachronism to suppose that a ‘road’ shown on an eighteenth-century map was necessarily a carriageway.
3.3 Before public roads were properly made and maintained, the users needed freedom to deviate and to find the best route over an adequately wide strip of open land. This was so whether one travelled on foot or horseback, with a horse-drawn vehicle, or droving cattle or sheep.
3.4 Where local conditions rendered the road swampy or liable to erode, the strip would be wider than where the ground was hard and well drained. Only if the ad-joining land was being inclosed or became cultivated was it necessary to define what open width travellers needed; then the landholder must either leave enough for any necessary deviation, or must accept liability for maintaining a roadway such as to be serviceable without deviation. Normally the landowner chose the former so that the parish would remain liable for maintenance.
3.5 Proper maintenance removes the need to deviate. But today, with maintained carriageways used to their limit by vehicles, a verge is essential on many roads for enabling pedestrians and horse-riders to use them safely. Where carriageway widening has left insufficient level verge, vehicles will soon oust from the highway all pedestrians and horse-riders who care for their safety. Highway authorities and the public purse have been party to this appropriation of roads by vehicles. The loss of verges for ridden horses results surely from an unreasonably narrow interpretation by highway authorities of their statutory duty (see paragraph 43 be-low).

4. The full width of a public road is a highway

4.1 When open land lies alongside a public road, and the public uses it for passage, the presumption will arise that the land has been dedicated as part of the highway (Rights of Way, pages 42–59). The rule is: once a highway, always a high-way, even if the needs and habits of the public have changed and the land is now little used. So this open land is just as integral to the highway as the metalled carriageway is.
4.2 Only with the specific authority of statute are obstructions lawful, such as traffic signs and bus shelters and new trees and certain apparatus of statutory undertakers. Even for road-stone knapping dumps — once commonplace along publicly-maintained roads — the old highway authorities would often acquire plots extending back from the road, rather than use the verge.

5. Planting and mowing the verge (2)

5.1 Highway authorities lawfully may put trees, shrubs and plants within the highway limits, and lay out the verge, and protect these with guard rails and even fences. A district or parish council can do the same with the highway authority’s consent. However the public has some safeguard: none of this may be done ‘in such a situation as to hinder the reasonable use of highway by any person entitled to use it’.
5.2 A frontager too can be licensed by the highway authority to plant and maintain trees, shrubs, grass and any other plants. So a flower garden can be licensed. Each frontage needs a separate licence. The safeguards for the public are different from where the council does the work. In particular, there is no power to license the frontager to erect stakes or a fence or other protection. Also it is left to the discretion of the authority to include in the licence any necessary conditions ‘to ensure the safety and convenience of passengers in the highway and to prevent traffic therein being delayed’.
5.3 Under some local legislation, where a particular highway verge is ‘mown or otherwise maintained in an ornamental condition’, perhaps under the above powers, the council can prohibit horses on it. In Essex the provision is circumscribed by useful amendments secured by petitioners while the Essex Bill (now the Essex Act 1987) was going through parliament (3).
5.4 Anyone concerned for the rights of the public over a highway verge should be watchful of these council powers. It would be helpful to get a copy of any provision in local legislation. While walkers and riders are being ousted from carriage-ways by traffic, it would be very wrong if they are ousted too from their use of such verge as there is.

(2) Highways Act 1980, ss.96 and 142

(3) S.6(2)(c) obliges the local authority to: ‘…consult the British Horse Society and the Byways and Bndleways Trust before exercising the powers of [prohibition of entry] so as to prohibit the entry of horses onto any land forming part of a highway.’

6. The highway may not include all the open land beside it

6.1 By no means is it implied that all land which lies open to the road is high-way, even where the road runs between enclosed properties. The highway may not extend to the physical boundaries. Such of the adjacent land as does lie within the highway limits is given a name by the Highways Act 1980, section 130: ‘roadside waste comprised in a highway’. The word ‘waste’ carries no derogatory or dismissive sense, any more than when we speak of the waste land of a manor or manorial waste. Sometimes roadside waste is indeed manorial waste but not necessarily so.
6.2 The words of section 130 concede that uncultivated land which lies open to a public road can be called roadside waste even when it is not comprised in the highway. When we see some pleasant roadside waste how can we tell whether the whole of it or part of it is comprised in the highway?
6.3 No statutory map exists for demarcating the highway boundary. But many highway authorities keep informal maps of ‘highway extent’, which show, in the opinion of officers, the width of publicly-maintainable highways (frequently, these may be based on nothing more than what appears to be shown on old maps as the highway boundary). In a case where the highway authority thinks some stretch of roadside waste is unnecessarily wide for the needs of a modern road, it may be less than enthusiastic about exercising or asserting highway rights over the ‘excess’ width. It may even propose making an extinguishment order whereby the ‘excess’ would revert to the frontager.
6.4 Conversely, where the highway boundary is not physically defined, a frontager may be found pushing the boundary outwards too far, perhaps by ploughing or afforestation or gardening. Failing precise evidence of highway dedication, a compromise line may be agreed with the frontager, and marked with posts.

7. Registered roadside waste

7.1 Much roadside waste was registered as common land under the Commons Registration Act 1965(4), perhaps right up to the carriageway. Some highway surveyors objected at the provisional stage and asked for what they regarded as a suitable width of verge to be taken off the register. This was because, for registration purposes, common land was defined not to include any land which forms part of a highway, and it was thought that registration might be seen as evidence against highway rights over that verge. This would make carriageway widening difficult.
7.2 Town and village greens were defined differently from common land, so as not to exclude any highway running over them. But this by no means implies that greens can be pared back for carriageway widening, even if there is evidence of highway rights beyond the carriageway edge. In the society’s view, widening a highway verge (even if highway rights are proven) which forms part of a registered town or village green demands that the green be deregistered.

(4) Such land may now be registered as common land under Part 1 of the Commons Act 2006.

8. Roads under inclosure awards

8.1 In each case, the true line of the highway boundary is a mixed question of fact and law. Perhaps the simplest case is where a ‘public carriage road or highway’ was allotted by an inclosure award, for the award defines the width in feet and usually requires a wall or ditch to be constructed and maintained immediately out-side the highway limit; that is to say, the measurement is taken ‘between the ditches’ or the walls.
8.2 A range of standard widths was adopted, varying somewhat between different localities and different inclosure commissioners. The Inclosure Act 1801 required an allotted public carriageway to be 30 feet wide at the least, the 1845 act 20 feet. The widths of allotted highways normally differ from those for private occupation roads in the same award. Often the width can be seen to change where the awarded road ends, such as at a parish boundary.

9. Turnpike roads

9.1 Turnpike trustees making a road through enclosed land would have to negotiate for the width they needed. But after 1828 they were empowered to make or widen a road across ‘any common or waste lands, without making any satisfaction…so that such road shall not exceed sixty feet in width (5)’. A similar clause might be found locally in earlier acts. It may help to be aware of this maximum width, particularly in relation to former turnpike roads constructed across common land (whether or not it remains common land).

(5) General Turnpike Road Act 1828 section IX.

10. The evidence of walls and fences

10.1 Where there are physical boundaries on both sides of the road which seem to have been aligned by reference to it, one starts with a presumption of law that the whole width between them is highway. It has been expressly stated by the courts that this is no less applicable where the width of the road is ‘varying and unequal’, than it is where the width is uniform(6).
10.2 Where evidence is lacking either for or against the roadside land having been dedicated as highway, the law presumes ‘that the public right of passage, and therefore the highway, extends to the whole space between the fences and is not confined to such part as may have been made up. In other words, the fences do mark the limit of the highway unless there is something in the condition of the road or the circumstances to the contrary(7)’.
10.3 It is necessary to consider what sort of layout might amount to ‘something in the condition of the road or the circumstances to the contrary’, such as to show that the physical boundaries were not aligned by reference to the road. This might be the case where a road has been constructed through a preexisting enclosure without erecting new roadside fences.
10.4 On principle, the presumption should apply equally where the road was aligned alongside and by reference to an existing fence, as where a fence was aligned alongside and by reference to an existing road; but the courts do not seem yet to have dealt specifically with the former case.
10.5 Other examples occur of physical boundaries that were not constructed by reference to the road. One case is where they mark the back edge of common land or a village green and appear unrelated to the highway (other than that the highway happens to run close to the boundary). Another case is the entrance to adjoining property where the fences are set back — though the layout can prove difficult to interpret, especially at a road corner.

(6) R v United Kingdom Electric Telegraph Co Ltd (1862) 31 LJMC 166 at 167.

(7) Attorney-General v Benyon [1969] 2 WLR 1447, per Goff LJ at 1453.

11. Road across open land

11.1 It has been stated by the Country Land and Business Association that ‘where a metal road crosses unenclosed land, and there is no indication of the limits of the highway by fences, ditches etc then the presumption is that the public right of way is limited to the metal track(8)’.
11.2 Assuming that is correct, this presumption could be displaced by sufficient evidence of public use; but the sufficiency would have to be considered in the light of the decision in Countess of Belmore v Kent County Council showing (to summarise) that evidence of merely occasional uses of roadside waste did not necessarily establish it as highway(9). Old stones set a little way back from the carriageway can sometimes be found; evidently an ancient attempt to define the width.

(8) Advisory Memorandum L3/88.

(9) [1901] 1 Ch 873

12. Special cases

12.1 It is easy to think of special cases where roadside waste adds greatly to the texture, the beauty, the interest and the utility of the place. One thinks of the land in a road fork, which may be a substantial area locally called a ‘cocked hat’. There is the land between a road and an adjacent river. Modern road-making has created strips between the main road and its service road, and between the old road and a realigned one. There are modern ‘open plan’ frontages, some at least of which are declared to be part of the highway. In some cases a public footpath or bridleway runs along the waste independently of the adjacent highway comprising the carriageway. The status of all these depends on the particular facts.

13. Ownership

13.1 If a highway is publicly maintainable — as most public roads are — the surface is vested in the highway authority in fee simple. This includes the surface of roadside waste comprised in the highway(10). Therefore the consent would be needd of the highway authority, simply as owner, for the frontager to do such things on the verge as creating a garden or planting shrubs or making impediments with stones, posts or chains; for these things would be on land vested in the authority.
13.2 However the authority’s ownership confers no power to give consent for any obstruction on the highway unless authorised by statute: see paragraphs #11–13 above. No less is that the case where the authority has acquired the full freehold, of the surface and subsoil, for road widening or construction.
13.3 Frontagers sometime argue that an area of roadside waste is ‘on their deeds’ and therefore not part of the highway. This is an entirely false argument. Adjoining owners are normally presumed to own up to the centre line of the highway, whether or not it is on their deeds.
13.4 All land is owned by someone, so every highway is over someone’s land. But this ownership is of the subsoil only, for not even where their deeds expressly include the land does this affect the statutory vesting of the surface in the highway authority.
13.5 The ownership of roadside waste not comprised in a highway is often unknown. That may be the very reason why the land has remained open and unenclosed. Locally it may be thought that the land was originally manorial waste, but there is no legal presumption of this, and any claim that it is still manorial waste would have to be proved in conveyancing terms. In one reported case, old maps showed it to have formerly been an enclosed plot.

(10) For ownership of the subsoil see Rights of Way, p.21.

14. Grazing

14.1 Where a road allotted by an inclosure award comprised useful herbage, the award might allot the grazing rights to parish officers to be let annually at a rent in aid of parish funds. This is the ceremony known as ‘letting the lanes’. The right has been inherited either by the present highway authority or by the parish council.

15. Margins for horses and livestock

15.1 The Highways Act 1980 provided as follows:
‘It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway adequate grass or other margins as part of the highway in any case where they consider the provision of margins necessary or desirable for the safety or accommodation of ridden horses and driven livestock… (11).’
15.2 The words ‘in or by the side of a highway’ enable the riding or droving strip to be put at either the front or the back side of the fence bounding the road. But the decision whether a strip is ‘necessary or desirable’ at all lies within the discretion of the authority: a discretion to be exercised reasonably.

(11) Highways Act 1980, s.71(1).

16. Protection of public rights

16.1 The Highways Act 1980 also provides as follows:
‘(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.
(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it.
(4) Without prejudice to the foregoing provisions of this section, it is the duty of a local highway authority to prevent any unlawful encroachment on any road-side waste comprised in a highway for which they are the highway authority.
(6) If the council of a parish or community [or, in the case of a parish or community which does not have a separate parish or community council, the parish meeting or a community meeting](12) represent to a local highway authority…
(b) that an unlawful encroachment has taken place on a roadside waste comprised in a highway for which they are the highway authority, it is the duty of the local highway authority, unless satisfied that the representations are incorrect, to take proper proceedings accordingly and they may do so in their own name(13).

16.2 The remedies available to a highway authority for implementing its section 130 duty, and also the following two High Court decisions, are detailed on pages 243–245 of Rights of Way.
16.3 In R v Surrey County Council ex parte Send Parish Council(14), a parish council succeeded in enforcing subsection (6) against the county council who wanted to substitute another highway instead of doing its duty towards the existing one.
16.4 In R v Lancashire County Council ex parte Guyer(15), a serious dispute existed over whether the way in question was a highway, and the county council was held justified in declining to act under the section.
16.5 For more information about the power conferred on parishes to enforce against unlawful encroachments on roadside waste, see the society’s information sheet Parishes dealing with highway obstructions.

(12) Subs.(6) has been clarified here by inserting brackets.

(13) Highways Act 1980, s.130 (part).

(14) [1979] JPL 613 DC.

(15) [1980] 1 WLR 1024.

17. How highway maintenance affects nature conservation

Other aspects which will interest the ecologically-conscious verge-watcher are revealed by a survey published by the former Nature Conservancy in 1972(16).
51. A total area was estimated for England and Wales of 178,000 hectacres of ‘land associated with highways’ excluding the metalled carriageways. By visiting 58 county highway departments it was established that some 97,000 hectacres of that total were actively managed by cutting or otherwise. The amenity value of verges was recognised by the departments as just one benefit among others:
a. in giving visibility at bends,
b. in providing space for apparatus, snow, salt, vehicles in emergency, and road drainage,
c. in ‘fitting’ a road, into its surroundings, to the psychological benefit of road users,
d. in separating pedestrians and horse riders from vehicles,
e. in providing ‘an area of countryside to which the public has unhindered access within limits imposed by traffic’, and
f. in the conservation of natural fauna and flora of the countryside.
52. The survey found that the conservation of nature on rural verges was much affected by the way they were managed by highway departments. Wide diversity was revealed in both methods and objectives. There were differences in when and how the vegetation was cut, in the use of chemicals for control-ling growth, in whether road sweepings were deposited on them, in salting policies with consequent spray, and in other factors. There were local differences too in constructing verges, in their height relative to the carriageway, in the seed mixtures used and as to the importing of topsoil, all affecting them as habitats.
53. Highway departments, and perhaps local divisional surveyors, each had their own thoughts on management. Yet ‘in formulating their verge maintenance programmes, counties are clearly influenced by what people (either in organisations, or individually) say they want…In general there is greater public pressure for more cutting rather than less…Complaints of too much cut-ting tend to be concerned with…wildlife…’.
54. However, if matters are still as they were in 1972 (and there is little reason to conclude that these tensions have been resolved), there is room for public opinion to make itself felt: ‘in any county the number of complaints in any one season may number fewer than a dozen unless a really controversial policy is adopted…’. Comments from representative organisations were specially valued.

(16) J M Way, Road Verges on Rural Roads.

This information sheet was written by the late Richard Harland, a former trustee of the society.
While the Open Spaces Society has made every effort to ensure the information obtained in this information sheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this information sheet.

© Open Spaces Society, November 2019

Further resources about New Opportunity to Register Lost Commons

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