It surprises many people to learn that around 8.4% of Wales comprises “common land”. Common land is notoriously difficult to define but is perhaps best thought of as being land that is subject to rights which are shared in common by a defined group. A “common” will therefore have a landowner (or landowners), but also “commoners”, who are entitled to exercise rights over it. It is not, therefore (as sometimes thought) an area over which all people have rights.

As a business, we have seen a considerable increase in clients who are commoners over the past few years, as renewable energy wind projects seek to establish themselves in the loftier reaches of Wales, where many of our larger commons are located. Those clients have been keen to obtain advice on how best to protect their rights from being impacted or eroded by development on what are ecologically sensitive areas. Mainly, the rights being protected are those to graze livestock.

For the developer, it will be important to enter into an agreement with a common’s commoners for two primary purposes. Firstly, to try to capture agreement from the commoners to the proposed project (and to thereby remove the possibility of them objecting to it). Secondly, to set guidelines by which development should take place, so that it and any commoners are aligned, in terms of how the development unfolds in practice.

For the commoner, the agreement will offer comfort around development and will often also include financial payments for disturbance which can be utilised to ultimately improve and benefit the common.

Below are 7 key points for any commoner (or solicitors advising them) to consider, when contemplating such an agreement.

1. Engage the services of a land agent. Whilst it may be tempting to negotiate directly with the developer it is wiser to engage the services of a specialist surveyor with experience of negotiating agreements of this sort. They will not only be able to provide specialist advice on what can, and cannot, be negotiated. They will also evidence, for the purposes of all commoners, that the association has been independently advised. Those commoners who lead their associations must be mindful to be seen to be, and to be, acting in the best interests of the association at all times and an independent adviser is a key step in this.

2. Give thought to how any agreement will be documented, having regard to the rules that regulate the association. Many commoners’ associations in Wales are not formally constituted and operate on a loose constitutional structure. Will that mean that each commoner will be asked to sign any end agreement to signify their consent to its terms and willingness to be bound by it, or will that power be delegated to a committee? If the latter, how will that be documented? Consulting solicitors should be asked to assist in this process.

3. The liability of commoners under any agreement should be expressed not to be personal. Instead, the agreement should provide, firstly, that the commoners may only be pursued for breach of the agreement collectively, as commoners. Secondly, that any collective liability of the commoners should be limited to the assets that are held from time to time by the association. This will often mean the cash held by the association. Minimising liability is a key requirement, in any process, we suggest.

4. Any works that are carried out to the common should be agreed with the land agent appointed by the commoners before being done. It will be important to ensure that access routes to the common are adequately gated to prevent trespass and that any excavation to create trenches or ditches are backfilled quickly, to minimise danger to livestock. Works at key periods of the shepherd’s calendar should also be considered in this context.

5. Any agreement that contains ongoing obligations on the part of the developer should be “bound to” the wider renewable energy scheme that the landowner and developer will pursue. That landowner will grant a lease of sites upon the common upon which wind turbines will be developed. The lease granted will be a valuable thing. Any agreement with commoners should track ownership of it, therefore, so that the party who is obligated to honour the agreement with the commoners is the same as that which operates the development / is tenant under the lease. One must seek to avoid a situation where the leasehold interest in the common is passed to “Company A”, which has worth, with the commoner’s agreement left with “Company B” which may become thereafter worthless.

6. Any agreement should make provision that where the renewable energy scheme is extended, so too should any agreement with the commoners. What operates now as a 45-year project could be extended. The commoner’s agreement needs to operate until the scheme ends, which for us means the point at which the land upon which the development takes place is fully remediated and reinstated.

7. Thought should be given to the role of the landowner, in this. Are there obligations that the commoners would prefer to see in the control / remit of the landowner or, from the landowner’s perspective, does it require direct covenants from the commoners in respect of their conduct, under the agreement? The landowner should not be forgotten, in the context of any agreement between developer and commoners.

Agreements between commoners and developers should not be viewed as something contentious. They are, rather, collaborative, and seek to harmonise the interests of two parties seeking to exercise very different interests over land. When properly advised and resourced such agreements can be mutually beneficial to both and can help to safeguard and promote the use and enjoyment of very special, valuable areas of our nation. It is vital, though, that the parties to them take advice from professionals who have experience in this area and who understand the complexities of a relatively arcane area of law.

If you would like to learn more about the topics covered in this article, our Real Estate team is available to assist you. To speak with a member of the team, visit the Real Team page  or call 01633 413500.