Legal issues relating to Midsummer Common

Legislation over the centuries has laid down rules on what could and could not be done on common land in England. This evolving legislation helped mould the scene as we see it today. Midsummer Common is subject to both national and local legislation.

Twelve national statutes are important:

Commons Act 1876;
Commons Act 1899;
Open Spaces Act 1906;
Law of Property Act 1925;
Commons Registration Act 1965;
Countryside Act 1968;
Environmental Protection Act 1990;
Dogs (Fouling of Land) Act 1996;
Countryside and Rights of Way Act 2000;
Clean Neighbourhoods and Environment Act 2005;
Commons Act 2006; and
Planning Act 2008.

Some of these statutes have been amended. The Commons Registration Act 1965 was completely repealed by the Commons Act 2006 which, inter alia, improves the registration system.

Five local statutes are important:

Cambridge Corporation Act 1850;
Cambridge University and Corporation Act 1894;
Cambridge Corporation Act 1922;
Cambridge Corporation Act 1932; and
Cambridge City Council Act 1985.

Although Parliament passed these five local Acts affecting Cambridge Commons, the most recent of these, the 1985 Act, repealed all of the 1850, 1922 and 1932 Acts and some sections in the 1894 Act.

Where national or local legislation does not already exist to prohibit or regulate comparatively minor and localised activity, local authorities may have powers to make byelaws. These are created by the Council but must be sealed and confirmed by a Secretary of State before they are enforceable. Breaching a byelaw is a criminal offence and an offender may be prosecuted in the Magistrates’ Court or issued with a fixed penalty notice.

Cambridge Council has made minimal use of its powers to make byelaws for its Commons. Council records show two sets:

Byelaws dated 23rd October 1851; and
Byelaws dated 4th November 1969.

These byelaws deserve updating. Reference is made in the Cambridge City Council Act 1985 to another set of byelaws made on 5th August 1880 but these cannot be traced.

Commons Act 1876

Under section 15 of the Commons Act 1876, owners of rights of pasture may "make byelaws and regulations for the prevention of or protection from nuisances or for keeping order on the regulated pasture, and for general management, occupation, and enjoyment of the regulated pasture". Section 16 allows "pecuniary penalties" to be imposed on persons breaking any such byelaws. Cambridge Council appears not to have used the powers under this Act to create any byelaws.

Commons Act 1899

Many local authorities used the powers under section 1 of the Commons Act 1899 to "make a scheme for the regulation and management" of their Commons "with a view to the expenditure of money on the drainage, levelling and improvement of the Common, and to the making of byelaws and regulations for the prevention of nuisance and the preservation of order on the Common". Under section 10 of the Act, "any fine imposed by any such byelaw shall be recoverable summarily and be payable to the Council in whom the management of the Common be vested". Cambridge Council appears not to have used the powers under this Act for the regulation and management of its Commons nor to create any byelaws.

Open Spaces Act 1906

Under section 15 of the Open Spaces Act 1908, a local authority can make byelaws "... for the preservation of order and prevention of nuisance ... and may by such byelaws impose penalties recoverable summarily for the infringement thereof ... and provide for the removal of any person infringing any byelaw ...". Cambridge Council appears not to have used the powers under this Act to create any byelaws.

Law of Property Act 1925

To safeguard common land, provisions were consolidated in sections 193 and 194 of the Law of Property Act 1925. Under section 193, "any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding £20 for each offence".

Section 194 of the Act restricts the inclosure and use of common land. Without the consent of the Secretary of State, the "erection of any building or fence, or the construction of any other work" which prevents or impedes access to common land is unlawful. Exceptions are made for electronic communications apparatus. The County Court can order the removal of such unlawful works. The Commons Act 2006 repeals section 194 but not necessarily with immediate effect.

Commons Registration Act 1965

The Commons Registration Act 1965 established definitive registers of common land and town and village greens in England and Wales. The register is a statutory document - each area of common land is given a unique "unit number" against which is recorded:

• Land - this includes a description of the land, who registered it and when the registration became finally registered. There are also maps showing the boundaries of the land;
• Rights - this includes a description of the rights of common, over which area of the Common they are exercisable, the name (if known) of the person who holds those rights, and whether the rights arise by virtue of a separate land ownership by the commoner; and
• Ownership - this includes details (if known) of owners of common land. However, entries in this section of the registers are not held to be conclusive.

The Cambridgeshire Register is held in Shire Hall. Midsummer Common has the unit number CL59 and there is an accompanying map outlining its extent. The record shows that the rights of common are:

To graze geldings, mares and cows from 1st April to 30th November in each year to a total of 20 beasts subject to regulation by the Corporation in accordance with their powers whether statutory or otherwise for the time being in force over the whole of the land comprised in this Registered Unit.

Unfortunately, the record was incorrectly made. The unit covered both Jesus Green and Midsummer Common but Jesus Green was left out of the mapped area. The 1965 Act did not permit changes to registered units so this omission was corrected later in the Cambridge City Council Act 1985.

Countryside Act 1968

Under section 9 of the Countryside Act 1969 local authorities can do things in the "interests of persons resorting to the common land for open-air recreation". They can provide "facilities and services for the enjoyment or convenience of the public, including meals and refreshments, parking places for vehicles, shelters and lavatory accommodation" and they can "erect buildings and carry out works". A local authority can also "acquire compulsorily any land in the neighbourhood of the common land" to do these things.

Environmental Protection Act 1990

Under section 87(1) of the Environmental Protection Act 1990 any person who "throws down, drops or otherwise deposits any litter in any [common land] and leaves it" is guilty of an offence and shall be liable on summary conviction to a fine or may be given a fixed penalty notice. Under section 89 of the Act, it is the duty of the Council "to ensure that the land is, so far as is practicable, kept clear of litter and refuse". Any person "aggrieved by the defacement, by litter or refuse" of any common land owned by the Council can complain to the magistrates' court which can issue a litter abatement order against the Council. The Clean Neighbourhoods and Environment Act 2005 amends and extends these powers to cover water as well as land.

Dogs (Fouling of Land) Act 1996

Under section 3 of the Dogs (Fouling of Land) Act 1996, "if a dog defecates at any time on designated land and a person who is in charge of the dog at that time fails to remove the faeces from the land forthwith, that person shall be guilty of an offence". Cambridge City Council has adopted and enforces this Act, which means that anyone in charge of a dog who allows it to foul on any land within the City (including common land) and fails to clear it up, could face a fine of up to £1,000.

Countryside and Rights of Way Act 2000

Registered Commons fall within the scope of the Countryside and Rights of Way Act 2000. This Act entitles any person to enter and remain on any Common for the purposes of open-air recreation, if and so long as (a) he does so without breaking or damaging any wall, fence, hedge, stile or gate, and (b) he observes the general restrictions in Schedule 2 and any other restrictions imposed in relation to the land. The latter include restrictions for land management, the avoidance of risk of fire or of danger to the public, nature conservation and heritage preservation, or in case of emergency.

Under Schedule 2, a person is not entitled to be on any land if, in or on that land, he:

(a) drives or rides any vehicle other than an invalid carriage as defined by section 20(2) of the [1970 c. 44.] Chronically Sick and Disabled Persons Act 1970,
(b) uses a vessel or sailboard on any non-tidal water,
(c) has with him any animal other than a dog,
(d) commits any criminal offence,
(e) lights or tends a fire or does any act which is likely to cause a fire,
(f) intentionally or recklessly takes, kills, injures or disturbs any animal, bird or fish,
(g) intentionally or recklessly takes, damages or destroys any eggs or nests,
(h) feeds any livestock,
(i) bathes in any non-tidal water,
(j) engages in any operations of or connected with hunting, shooting, fishing, trapping, snaring, taking or destroying of animals, birds or fish or has with him any engine, instrument or apparatus used for hunting, shooting, fishing, trapping, snaring, taking or destroying animals, birds or fish,
(k) uses or has with him any metal detector,
(l) intentionally removes, damages or destroys any plant, shrub, tree or root or any part of a plant, shrub, tree or root,
(m) obstructs the flow of any drain or watercourse, or opens, shuts or otherwise interferes with any sluice-gate or other apparatus,
(n) without reasonable excuse, interferes with any fence, barrier or other device designed to prevent accidents to people or to enclose livestock,
(o) neglects to shut any gate or to fasten it where any means of doing so is provided, except where it is reasonable to assume that a gate is intended to be left open,
(p) affixes or writes any advertisement, bill, placard or notice,
(q) in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does anything which is intended by him to have the effect:
      (i) of intimidating those persons so as to deter them or any of them from engaging in that activity,
      (ii) of obstructing that activity, or
      (iii) of disrupting that activity,
(r) without reasonable excuse, does anything which (whether or not intended by him to have the effect mentioned in paragraph (q)) disturbs, annoys or obstructs any persons engaged in a lawful activity on the land,
(s) engages in any organised games, or in camping, hang-gliding or para-gliding, or
(t) engages in any activity which is organised or undertaken (whether by him or another) for any commercial purpose.

Under the Act, any person placing a notice containing any false or misleading information likely to deter the public from exercising the right of access to a Common is liable on summary conviction to a fine.

The Act empowers the local authority to make byelaws:

• for the preservation of order on the Common;
• for the prevention of damage to the land or anything on or in it; and
• for securing good behaviour by those persons using the Common as to avoid undue interference with the enjoyment of the land by other persons.

Any such byelaws must not interfere with the exercise of any public right of way or with the statutory rights of other bodies. The local authority must consult various third parties before making any such byelaws and seeking the Secretary of State's confirmation. A local authority may appoint wardens to secure compliance with the byelaws, to enforce any exclusion, and to help the public enjoy their access rights.

Clean Neighbourhoods and Environment Act 2005

The Clean Neighbourhoods and Environment Act 2005 replaces a previous system of dog byelaws with a new system of "dog control orders". Section 55 of the Act allows for the making of an order relating to:

• the fouling of land by dogs and the removal of dog faeces;
• the keeping of dogs on leads;
• the exclusion of dogs from land; and
• the number of dogs which a person may take on to any land.

Section 57 provides that dog control orders may apply to all public land which is open to the air. Authorised Council officers, or anauthorised person working on their behalf, can issue a fixed penalty notice offering members of the public an opportunity to discharge any liability for offences under a dog control order. Dog Control Orders can be made following the procedure prescribed in the Dog Control Orders (Procedures) Regulations 2006. Cambridge Council has yet to make an order under these Regulations.

Commons Act 2006

The Commons Act 2006 deals with the registration of common land and town or village greens, works and fencing on common land, and the agricultural use and management of common land.

Part 1 of the Act provides for Commons registration authorities to continue to keep registers of common land and town or village greens ("the Commons registers"), and to permit amendments to be made to the registers. This replaces and improves the registration system under the Commons Registration Act 1965 and the Common Land (Rectification of Registers) Act 1989 but uses the same registers. In particular, it includes provisions for:

• the amendment of the registers upon the occurrence of registrable events, such as the disposition of rights of common, statutory dispositions of common land (e.g. under compulsory purchase legislation) and the creation of new town or village greens;
• the prohibition of the severance of a registered right of common from any land to which it is attached, subject to certain exceptions;
• the deregistration of common land and registration of other land as common land in exchange, subject to the consent of the appropriate national authority;
• the correction of errors in the registers by Commons registration authorities;
• the establishment of electronic registers;
• transitional powers to rectify mistakes made in registers under the 1965 Act, and to register events which occurred while the 1965 Act was in force; and
• ensuring that only registered rights of common may be exercised over land to which Part 1 applies.

Part 2 enables the appropriate national authority to establish Commons councils. It is envisaged that the principal function of a Commons council will be to make rules relating to the agricultural use of the common land, the management of the vegetation, and the management of rights of common.

Part 3 (which replaces and repeals section 194 of The Law of Property Act 1925) contains provision to prohibit the carrying out of restricted works on certain common land without the consent of the appropriate national authority and makes provision about how consent may be obtained. Restricted works are those which prevent or impede access, or the resurfacing of land. Works includes the erection of fencing, the construction of buildings and other structures, the digging of ditches and trenches, and the building of embankments. Resurfacing means the laying of concrete, tarmacadam, coated roadstone or similar material, but does not include repairing an existing surface of land made of such material. The controls apply to all registered common land. Where works are carried out without consent, any person may apply to the county court in whose area the land is situated. Previously, this power was limited, primarily to local authorities, owners and commoners.

Part 4 contains provisions conferring powers of intervention on the appropriate national authority to deal with situations where unauthorised agricultural activities are taking place and damaging the Common (for example, through over-grazing where grazing is occurring by those without rights of common or by those grazing more livestock than their rights allow), and no person is otherwise able to act to control it. The powers can be used to stop activities that are detrimental to either those with rights in the common or to the public interest.

Planning Act 2008

Under section 131 of the Planning Act 2008, Parliament must approve any order for the compulsory purchase of common land for development, unless the Secretary of State certifies, after public consultation, that replacement land is given in exchange, or it does not exceed 200 square metres in extent, or is required for the widening or drainage of an existing highway. Under section 132 of the Act, an order granting development consent and the compulsory acquisition of a right over common land is subject to special parliamentary procedure, unless the Secretary of State certifies that, inter alia, interested parties will not be disadvantaged.

Cambridge University and Corporation Act 1894

The remaining sections in this Act give the Council powers to do things on its Commons. They may:

• Improve the Commons or some of them so far as may be necessary or desirable for the purposes of health recreation and enjoyment;
• Make and maintain roads footpaths and ways;
• Plant trees and shrubs for purposes of shelter or ornament and fell cut lop and manage the same and any other trees plants and shrubs on the Commons and make and maintain so long as shall be necessary temporary enclosures for the protection of trees shrubs and turf;
• Erect baths wash-houses and lavatories (provided that baths and wash-houses shall only be erected on the banks of or within thirty yards from any stream and shall be constructed of wood)

Provided that in exercising the powers the Council shall not unduly interfere with, hinder or prejudice any rights of common in or over the Commons.

The Act empowers the Council to make byelaws for any of the following purposes relating to its Commons:

• For preventing the digging or taking of turf loam stone sand gravel or other substances;
• For preventing the injury or cutting of trees shrubs brushwood or other plants or for preventing injury or damage to any stream ditch or watercourse or to the banks thereof running by through or on the Common;
• For preventing or regulating the deposit of or suffering to remain on any part of the Common any rubbish manure or other substance;
• For regulating the playing of games and athletic sports and for setting apart from time to time certain Commons or parts of Commons upon which persons may play games or hold athletic sports and for prohibiting the use for the purposes aforesaid of any other Common or parts of a Common;
• For preventing or regulating riding and driving on the Commons and the roads and footpaths on the Commons;
• For regulating the use of baths wash-houses and lavatories and the charges to be made for such use;
• For the prevention of or protection from nuisances and for preservation of order.

But it places the Council under a duty to compensate any commoners whose rights are:

injuriously affected by the exercise of any of the powers conferred upon the [Council] under the provisions of this part of this Act or under any byelaws made thereunder.

The Council used the powers under this Act to create the byelaws dated 4th November 1969.

The Act gives further powers relating to Midsummer Common:

The [Council] may from time to time enclose all or some part of the Commons known as Midsummer or Jesus Green and Butt Green for the purpose of permitting the same to be used for the Royal Agricultural Society's Show or for any other agricultural or horticultural or other show or for any other public purpose of a temporary nature or may use the same for any such show or purpose and the admission to the enclosed portion of the said Commons may be either with or without payment as directed by the [Council] or with the consent of the [Council] by the society or persons to whom the use of the enclosed portions of the Commons may be granted and the [Council] may stop up or divert Victoria Avenue or any road or footpath within the enclosure so long as such enclosure continues.

Cambridge City Council Act 1985

Under the more recent 1985 Act, the Council's powers are extended. They may:

• set apart such parts of any public open space or Common within the city as they think fit for the purpose of games and recreation and for purposes ancillary thereto and lay out and adapt the same for those purposes;
• erect and maintain on any such public open space or Common pavilions, buildings, works and conveniences for or in connection with any of the aforesaid purposes;
• make such reasonable charges as they think fit for the use of or access to parts so set apart and such pavilions, buildings, works and conveniences;
• let the parts so set apart and such pavilions, buildings, works and conveniences on lease or otherwise to any club or person upon and subject to such terms and conditions as may be agreed and authorise the lessee or tenant to make reasonable charges for the use thereof and for access thereto;
• exclude the public and animals from the parts so set apart and from such pavilions, buildings, works and conveniences;
• make bye-laws with reference to the user of the parts so set apart and of such pavilions, buildings, works and conveniences and for the preservation of order and good conduct among persons resorting thereto.

Provided that in respect of the total area of Butt Green and Jesus Green and Midsummer Common not more than one half shall be so set apart at one and the same time [but animals may be excluded from the whole or any part].

This Act does not define what is meant by "games and recreation" or "purposes ancillary thereto". Neither does it define what is meant by "works" although the Commons Act 2006 does state that the reference to works includes in particular:

• the erection of fencing;
• the construction of buildings and other structures;
• the digging of ditches and trenches;
• the building of embankments; and
• the resurfacing of land.

Where resurfacing means the laying of concrete, tarmacadam, coated roadstone or similar material, but does not include repairing an existing surface of land made of such material.

Under this Act, the Council may from time to time close any Common for up to 6 days but for no longer than 12 days in any one year for the purposes of any agricultural, horticultural or other show or for any entertainment or exhibition or for any other public purpose of a temporary nature. The Council shall also continue to have the power to regulate grazing, make associated byelaws, and deal with trespassing livestock. It may:

• prescribe the procedure for the registration of commoners entitled to graze animals on that land in the following grazing season and make a reasonable charge for such registration;
• determine which commoners may graze animals on that land in the following grazing season and the number of animals each may graze;
• charge a reasonable sum for the exercise of grazing rights;
• prohibit the grazing on those lands of animals otherwise than in accordance with this section and any byelaws made thereunder;
• make byelaws for or in connection with their regulation of grazing on the land to which this section applies.

The Council may exclude animals from the whole or any part of Butt Green, Jesus Green and Midsummer Common.

This Act also states that:

The fair of Barnwell commonly known as the Midsummer Fair shall commence at 2.30 o'clock in the afternoon (or such earlier hour as may be proclaimed by the mayor of the city) on the third Wednesday in June, or, if the third Wednesday falls on 15th, 16th or 17th June, on the fourth Wednesday in June and shall continue for the four days (exclusive of Sunday) next following the day of commencement and no longer.

On 24 May 2000, the Secretary of State made an order under section 6 of the Fairs Act 1873 amending the times at which the Fair shall be held. The Sunday exclusion was removed and the Fair extended from five to six days.

Cambridge City byelaws as to Commons dated 23rd October 1851

Cambridge City byelaws dated 4th November 1969

CITY OF CAMBRIDGE

Byelaw made under Section 20(G) of the Cambridge University
and Corporation Act 1894 as to the feeding of Animals on
Common Lands within the City

1. Subject as hereinafter provided no person shall offer food or drink of any kind to any animal depastured upon any Common Land to which this Byelaw applies.

2. Nothing in this Byelaw shall apply to the offering to any animal of food or drink by the owner of such animal or by a person especially authorised by him in that behalf.

3. This Byelaw shall apply to the following Common Lands within the City of Cambridge;:-

Coldham's Common
Stourbridge Green
Midsummer Green or Jesus Green Butts Green
Queen's Green
Laundress Green
Sheeps Green
Coe Fen
Coe Fen Straits New Bit
Empty Common

4. Any person offending against this Byelaw shall be liable on summary conviction to a fine not exceeding Twenty pounds.


GIVEN Under the Corporate Seal of THE
MAYOR ALDERMEN AND CITIZENS OF
THE CITY OF CAMBRIDGE this 20th
day of May 1969

John Elven
Town Clerk

The Secretary of State this day confirmed the foregoing byelaw and fixed the date on which it is to come into operation as the first day of December, 1969.

Philip Woodfield
An Assistant Under Secretary of State

Home Office
Whitehall
4 November 1969