Fell Pony Grazing Rights on Shared Commons

An article written for the Fell Pony Society, first published in its Magazine in Autumn 2019, and in shortened form in Native Pony Magazine in July 2020. This is the full text, complete with references.

fell ponies on Birkbeck common in 2005
Fell ponies on Birkbeck fell common in 2005. Photo, Sue Millard.

Fell Commons and Rights for Fell ponies

Fell rights are vital to our hill breeders in Cumbria and Lancashire. This article was proposed to FPS Council in July 2019, to try to shed some light on how the fell commons work, and to explain why the pony herds which run on the commons remain relatively few in number.

Admittedly, the overall picture is not always easy to understand. Even people who own property with fell rights may only be familiar with the law for their own area, and those rights vary between different commons.

I have talked to several Fell pony breeders, all of whom have experience of running ponies on shared commons. Some of them have advised or dealt with the Department for the Environment, Food and Rural Affairs (DEFRA) or Natural England (NE). Most preferred not to be named here.

This article is not a statement of law. It is a brief overview of commons and rights. Please use the references at the end to find more detail, both from books and from online sources. There is a great deal of information available, such as Government Guidance on Managing Common Land, the DEFRA Database of Common Land, Commons Registers, Common Land Grazing Rights (for farm subsidies), Commons Associations and Federations. Please follow those links to read more.

History & Tradition

The origins of common land-use are extremely ancient, pre-dating the Norman conquest. Woodland, riversides, marshes, moors, downlands, peat bogs and “wastes” were all economically important. The “open field” system of agriculture provided each family with its own strip of land near the village to grow vegetables, fruits and grain. Milking cattle, goats and sheep, working oxen and horses, grazed together on a large communal meadow within easy walking distance of the village. Other livestock were turned onto the common land beyond the meadow. These could have included heifers and dry cows; wether sheep, ewes with lambs; geese; goats; and - of most interest from our point of view - the young horses or ponies, breeding mares, or horses or ponies not in work. (Fowler, 2002) i

Access to the common land was shared out among the people who lived in the village, and the resulting “rights” were overseen by its Manor Court. One of the last surviving working examples of this ancient management system in England is at Orton (Cumbria), where our FPS AGM is held. Laxton in Nottinghamshire still has a court and a working open field system; the New Forest has monthly court meetings.

The point about fell rights is that they shared out the village’s grazing on a reasonable basis. “Common land” then did not mean “public access”. It meant that although the Lord(s) of the Manor owned the land, the grazing and other rights were held by villagers “in common” - ie, as a group. However, various Enclosures Acts from the 17th century onward enabled rich families to fence off common land and turn it into private property.

The first parliamentary enclosure act, dating from 1767, was for 158 acres on Kendal Fell. An act to enclose a substantial area at Orton was passed in 1769, but took 10 years to accomplish because of “major problems” ii. 91 people in the parish of Ravenstonedale had also signed a petition which successfully opposed an attempt by Sir James Lowther, as the lord of the manor, to enclose the commons. However Bolton, near Appleby, preferred to enclose its common to prevent overgrazing by cattle being droved south from Scotland.

The destruction of the ancient system was a huge shock to rural communities, as pithily outlined in this old poem:

The law locks up the man or woman
Who steals the goose from off the common,
But leaves the greater villain loose
Who steals the common from the goose.

Principal beneficiaries during enclosures in Westmorland were the Earls of Thanet and Earls of Lonsdale, who were possibly speculating by buying the lordships of commons and enclosing them iii. Parcels or “allotments” of land enclosed from the common were awarded to individuals but also to organisations - churches, chapels, schools, overseers of the poor and private charities, but enclosure did not benefit the majority of country people. Those who could not find work near their villages had to move to an industrial town or city, and labour there – a “country-to-town” drift that is still ongoing today.

The farmers who use their rights today to run sheep, cattle and ponies on fell commons are keeping up a tradition, which is at least a thousand years old, of living intelligently “with” the land.

Commons in England today

The Ministry of Agriculture, Fisheries and Food (MAFF) carried out a biological survey between 1982 and 1993, of common land which had been registered in 1970. In that survey, 7,052 commons were listed in England. (DEFRA Database of Common Land iv ). These data form a snapshot of the registers of common land at that time.

The Government defines common land as “land owned by one or more persons where other people, known as ‘commoners’, are entitled to use the land or take resources from it.” (Government Guidance on Managing Common Land v, vii). The Countryside and Rights of Way Act 2000 vi gave the public the “right to roam” across many of these uncultivated areas but not to behave recklessly or disturb livestock or wildlife. For example, 80% of the Howgill Fells is now designated as public access land, one of the highest percentages in England.

In 2001 MAFF was renamed the Department for Environment, Food and Rural Affairs (DEFRA), and it no longer receives amendments to the Commons Registers, so the most up to date versions are now held by local authorities, eg Cumbria Commons Registration Service viii and Lancashire County Council. ix

Commons in Cumbria and Lancashire

The Federation of Cumbria Commoners now (2019) lists 630 commons in Cumbria (Map of Cumbria’s Commons x), ranging in size from less than half a hectare to well over 3,000ha. The 5 single largest named commons are Dufton (4616 hectares), Coniston/Dunnerdale/Seathwaite (4552ha), Brackenthwaite (4256ha), Caldbeck (3726ha) and Eskdale (3071ha). In all there are 41 commons over 1000ha in size, though where commons adjoin one another the tracts of ground are much larger. These are all on very high ground, for example on the Howgills, on the Pennines, and on the High Street ridge between Ullswater and Haweswater.

43 of the commons in Cumbria and 1 in Lancashire are designated as Sites of Special Scientific Interest (SSSIs). 25 commons lay within the Lake District National Park as it was before changes of boundary in 2017.

6 commons are in an Area of Outstanding Natural Beauty (AONB). These are all in the North Pennines.

Databases and Registers of Common Land

Commons with rights to graze horses or ponies (1993, 2000, 2012)

161 commons in Cumbria and Lancashire had fell rights registered to graze horses or ponies, often alongside cattle, sheep, pigs, poultry and goats:
141 commons were registered in Cumbria (129 in Cumberland or Westmorland, and 12 in South Lakeland, “Lancashire north of the Sands”)
20 in Lancashire.
161 total. (DEFRA Database of Common Land [2012; data from 1993] xi and the Commons Register 2000 xii)

The 2006 Commons Act

Rights have always varied from common to common because the local laws developed by tradition, from the needs of a particular village or villages, without any overarching legal guidance at national level. The intention in 2006 was to bring the registered rights of 1970 up to date, and theoretically there might then have been an increase in the number of pony grazing rights discovered, proved and registered. However, by 2009 it seems that the process was taking very much longer than had been expected so the target date of 2010 for completion “became unrealistic”.

Basic Payment Scheme subsidy

The Rural Payments Agency manages the EU subsidies which are given to farms. No financial support is given directly to animals, whether housed, or in enclosed fields, or on commons. Subsidies are based solely on the land itself. The most recent data I can find about commons are in a PDF document detailing farm Basic Payment Scheme (BPS) claims, made by farmers in 2017 for 2018 payment on the area of land they farmed, including their Common Land Grazing Rights xiii.
These rights are brought into the calculation as explained below. xiv

Livestock Units (for BPS)

At the moment, graziers claim BPS subsidy for their share of a common by declaring their Common Land Grazing Rights on it. The process is more complex than claiming directly for their area of enclosed farm land (in-bye fields). A BPS claim for shared grazing on a common is expressed first as rights, then converted to Livestock Units, then translated into hectarage for the purposes of the subsidy claim. (Commons eligibility checks 2019 xv) This is where things become complicated.

The 2018 Livestock Unit values, for farmers to calculate their BPS subsidy claims, are as follows:

Livestock type
Livestock Unit value
(BPS Rules 2018 xiv)
Cattle
1.00
Horses
1.00
Donkeys
0.60
Heifers or Stirks
0.60
Ponies
0.60
Pigs
0.30
Goats
0.15
Sheep
0.15
Poultry (over 6 months)
0.02

Livestock Units (LUs) are purely theoretical. They are used to calculate the nominal area of common land a farm might claim, for its BPS subsidy. They are not the same thing as Common Land Grazing Rights which define what animals can be grazed on the land, and how many.

Rights making up 10LUs may look as though you could graze 10 horses, or 10 cattle, or 66 sheep, or 16 ponies, but the grazing rights themselves still define what you can graze on a particular fell common.

Applications for farm BPS subsidies reveal that in Cumbria in 2017, only 63 commons were noted as having rights registered for ponies – many fewer than the documented “paper” rights in 1993.

Common Land Grazing Rights

Common Land Grazing Rights are now permanently attached to property; eg, to a house, a farm or a parcel of land.

Commons are subject to agreements with all the commoners who share the grazing, and to any agreements they have signed up to with Natural England (NE). Existing grazing rights are used to calculate BPS subsidy (see above). Theoretically DEFRA and NE might countenance an exchange of sheep or cattle rights for ponies. However that still depends on the existing arrangements for that common, and in practice if there have not been any pony grazing rights registered it is unlikely the other graziers would agree.

Selling or Leasing Common Land Grazing Rights

You can only sell rights these days by selling them with land or property, unless you are selling or transferring them to either Natural England or a Commons Council, or anyone named in an order made by the Secretary of State for Environment, Food and Rural Affairs.

Grazing rights that are not being used can be leased to another person for 2 years maximum. The lease must be renewed at the end of the 2 years, even if nothing in the agreement has changed. (Government Guidance on Managing Common Land xvii)

Local agreements

DEFRA and Natural England oversee the various levels of Stewardship Agreements that apply to farms and to commons. Commoners and landowners can set up a Commons Council to manage commons. Commons Councils are statutory groups: they are recognised by law, and can make legally binding rules for how people use the common land.

Commoners and landowners can also set up voluntary groups called Commons Associations, which usually have no legal power and rely on their members to agree about how the common should be managed. They can however sign legally binding agreements or guarantees about how members must treat the common, if all members agree. A joint agreement among graziers to put their common land into Higher Level Stewardship, for example, can over-ride previous or traditional arrangements and become enforceable in law.

Landowners

The largest landowners include the Lake District National Park Authority and United Utilities. Helvellyn, for example, is shared between the Lake District National Park Authority on the east side, and United Utilities on the west. Other owners in Cumbria include the National Trust; Natural England; the Royal Society for the Protection of Birds; and private estates such as Lowther.

Landowners may own, for instance, the mineral rights on the common, or the game shooting rights, without having any actual rights to put livestock onto the land. They are involved in making any agricultural agreements which affect the common. The landowner of a common can take action to stop anyone from exceeding their rights. (Government Guidance on Managing Common Land xvii)

Natural England (NE) is an executive non-departmental public body, sponsored by DEFRA, and acts as the government’s adviser for the natural environment in England. On any registered common land, or town or village greens with rights of common, NE can for instance stop someone:

• grazing livestock on land without the right to do so
• grazing a type of animal that they don’t have permission or rights to graze
• exceeding their commons rights
• removing or cutting vegetation without legal authority. There are other unauthorised activities.
(Government Guidance on Managing Common Land xviii)

Fell pony Hill breeders

The Fell Pony Society’s definition (2018) is recorded in Council Minutes: “The following definition was agreed. To have ‘rights on common land to graze and be an active grazier.’” (July 2018 xix)

It should be pointed out that the actual numbers of registered ponies are healthy, and registrations of foals have been rising for the past four years xx (Stud Book entries 2015 – 2018). Number of foals born to those hill herds are also increasing. There were 19 stud prefixes on the 2018 list of active graziers, and the 2019 list will include at least 4 more (possibly 6; numbers to be confirmed on completion of foal registrations).

Foal Registrations
2015
2016
2017
2018
Hillbred
82
89
107
110
Total UK
203
209
240
276
% Hillbred
40%
43%
45%
40%

Hill bred foal numbers should rise again in 2020 when the additional herds’ foals should be added to the count.

A new herd?

If you have taken-in the facts given in this article so far you will realise that for anyone to establish a new fell-going herd of ponies they must –

• either have enough money to buy and run property that has rights on common land,
• or be able to lease existing, unused grazing rights and to renew them on a 2-year basis.

To establish a herd, the common rights have to include a specific, or exchangeable, right to graze ponies. It depends entirely on the arrangements for a particular common, whether graziers can swap cattle or sheep rights for ponies. Long-term leasing depends on the continuing goodwill of the original rights-holder.

Rights to graze ponies on common land may still exist which are not being used. However, it will involve difficult and lengthy research (time and money) just to find out where they are, let alone whether they have lapsed or what constraints or agreements are in place.

Other considerations

Examples

Grazing rights can be extinguished by commoners’ agreements, eg on Crosby Ravensworth Fell the commoners decided in the 1980s to remove rights for horses and ponies.

Rights are still being extinguished by external actions. The Ministry of Defence has applied to “de-register” 4,500 hectares of common land (Murton, Hilton and Warcop Fells) near Warcop training area, having already bought-out the rights on adjacent areas in 2002.

There may be unwanted side effects of new arrangements imposed on a common, even with the best of intentions. NE’s acting area manager for Cumbria said in August 2019 (in a longer statement about common land management), “Natural England are supportive of Fell ponies as an important part of the cultural heritage of the area and for the conservation benefits they can bring through appropriate grazing. However, too many animals in the wrong place can damage upland habitats.”

This pressure on habitat may not necessarily be due to overstocking in the sense of “too many animals for the total area of the common”. Examples cropped up in conversations with hill breeders:

Walkers and trail-bike riders may disturb grazing livestock, whether they mean to or not, and that can discourage the animals (not just ponies) from using the full area of a common. Particularly where there are fenced-off sections, the stock can become heafed to a smaller area and the concentration may cause more damage to the ground than they would have done if they had been undisturbed.

Fenced areas may compel grazing animals to travel, for example between grazing and watering places, through a more constricted “funnel”, causing eroded tracks and poaching. Also where new areas are fenced, they may create a barrier across the animals’ normal routes to shelter in bad weather, which might be a welfare issue in a severe winter.

Winter feeding of animals may be restricted on the common to prevent spilled forage smothering low growing flora. In that case, feeding must be done elsewhere, eg on concrete “pads” near the farm. The stock move daily from their preferred grazing and sheltering areas back to the farm and the traffic again can cause erosion.

Implications for the Fell pony on the fells

The FPS – and the Fell Pony Breeders’ Association (FPBA), which has members on FPS Council – have a major role in supporting the existence of the free roaming Fell pony herds. FPS Council is made up almost entirely of pony breeders, and (in 2019) six members of Council are hill breeders (Bybeck, Greenholme [2], Lownthwaite, Townend, Wellbrow).

FPS is in touch with Commoners’ associations and Commoners’ councils. A Society Council member attends meetings of the Federation of Cumbria Commoners. The FPS Secretary has to attend certain meetings with DEFRA and Natural England.

Although NE and DEFRA have an interest in the management of the commons, with the best will in the world they can’t be in close contact with these areas of land every day. The people who have the most information on which to base decisions are the people who do see it and use it regularly, ie, the Fell pony hill breeders and the graziers. Some have already achieved reasonable agreements with regulatory bodies. If we can document and share what is working for them, including how to deal with civil problems such as public access and stock disturbance, we can advise people who need similar arrangements elsewhere.

Pony presence on hill commons depends on agreements and good relations between all the graziers on a common, as well as with Natural England. One of my interviewees summed it up: “It’s a shared fell, that’s what ‘common’ means – you have to keep in with your neighbours!”

Sue Millard, September 2019

References

i Peter Fowler, 2002, Farming in the First Millennium AD, p59.

ii Peter Fowler, as above, p61.

iii https://www.cwherald.com/app.php/a/archive/orton-s-is-the-only-working-manor-court-in-the-country.430841.html Cumberland & Westmorland Herald, August 2014.

iv DEFRA Database of Common land https://data.gov.uk/dataset/05c61ecc-efa9-4b7f-8fe6-9911afb44e1a/database-of-registered-common-land-in-england

v Government Guidance on Managing Common Land, June 2015.
https://www.gov.uk/guidance/managing-common-land

vi Countryside and Rights of Way Act 2000,
http://www.legislation.gov.uk/ukpga/2000/37/contents

vii DEFRA Database of Common Land, published 2012, dataset dated 1993.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/572998/common-land.xls

viii Cumbria County Council, Commons Registration Service
https://www.cumbria.gov.uk/planning-environment/conservation/commons-registration-service/

ix Lancashire County Council, Commons Registration Service
https://www.lancashire.gov.uk/council/transparency/registers/commons-register/

x Federation of Cumbria Commoners, Map of Cumbria's Commons,
http://www.cumbriacommoners.org.uk/cumbria-commons-map

xi DEFRA Database of Common Land, 2012. As above.

xii Commons Register 2000, https://datacac.uk/csvTable/united-kingdom/Commons-register-England,--2000-26.html

xiii Basic Payment Scheme subsidies (Common Land Grazing Rights 2017),
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/698817/Common_land_grazing_rights_Final_2017.pdf

xiv Basic Payment Scheme Rules 2018.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705756/BPS_2018_scheme_rules_v5.0.pdf

xv Commons eligibility checks 2019, https://www.gov.uk/government/publications/commons-eligibility-checks

xvi Basic Payment Scheme Rules 2018. As above.

xvii Government Guidance on Managing Common Land, June 2015. As above.

xviii Government Guidance on Managing Common Land, June 2015. As above.

xix FPS Council Minutes, May 2018.

xx FPS data in Grassroots database, accessible from the FPS web site if you are a Society member.