Legal advice: Common land
by Niall McCann of thePublican.com's legal team from London solcitor Joelson Wilson.
Do you have a problem with herbage? Or perhaps turbary is causing you some discomfort. These are actually types of rights of common, which have existed since the Middle Ages.
Recently we looked at cases where the ownership of pub forecourts was in doubt. More awkward problems can arise where the frontage land is registered as common land or part of a town or village green.
These cases are not unusual. Think how many pubs adjoin village greens or are situated behind grass verges which may be subject to rights of common.
It is a criminal offence to drive a vehicle across common land without permission. Numerous property owners have found this out to their cost, because they were charged hefty sums to obtain consent from the owner of the land concerned. Because using the access was an offence, the property owner could not claim he had gained a right of way by long usage - unless he could show that the use began before 1906!
The government stepped in to remedy the problem, but the act only benefits property owners who have already been using the access concerned for 20 years or more.
They can obtain a right to use the access on payment of a certain sum, set by a formula (two per cent of the property value, but less for pre-1930 properties), and not be held to ransom as in the past. If you do not qualify for a statutory easement and the access to your car park is over common land, you face a problem, unless the owners of the common are prepared to grant you a licence.
The position regarding town and village greens is still being clarified.
Most commons are privately-owned, often by a parish or local council. You can find out from the county council who owns the land and what rights are protected. But according to official figures there are nearly 2,000 commons of which the owners are unknown. Who then will stop you using an access across the common? The Open Spaces Society, a charity founded in 1865 and the oldest conservation society in the country, might.
If you propose to carry out works on land which is subject to rights of common - even your own land - you will have to obtain consent from the Department for Environment, Food & Rural Affairs (DEFRA) by making a formal application.
The principle is that access to common land should be unrestricted, so you need consent for works such as putting up a fence or laying out a car park.
A lot of red tape is involved. You must publish notices in the parish and in a local newspaper and tell DEFRA what objections are received. The Open Spaces Society will also be consulted and it is unlikely to give you an easy ride. DEFRA will make the final decision.
In all such cases you will be at the mercy of other people, who may have quite different priorities to you. What you see as useless scrubland may to them be the priceless habitat of some bird or plant.
Your plans for developing trade at your pub will represent exactly what they do not want to see happen. Even when you get consent for works, there may be conditions attached which you might see as unreasonable.
So, turbary, herbage, vesture, beastgate and estovers may all seem to be quaint hangovers from medieval times, but ignore them at your peril.
