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How to take action against unlawful encroachments and works on commons
This information sheet tells you how to protect your common from unlawful encroachments and works, and explains how the public can use a power of court action against certain unlawful works.
- Introduction
- Power to take action
- Background research
- Taking action - owner's permission
- 'Ownerless' commons
- Commoners' rights
- Commons Act 1876, section 30
- Section 38 applications
- Pre-action behaviour
- Court procedure
- React quickly
- Other action
- Threat of unlawful works
- Action group
- Permanent visual record
- Further information
- Appendix
1.1 This information sheet tells you how to protect your common from unlawful encroachments and works, and explains how the public can use a power of court action against certain unlawful works.
1.2 We often receive letters from members concerned about unlawful fencing or works on a common, whether on a relatively minor scale, where a local inhabitant has incorporated a small part of the common into his or her garden, or on a major scale, such as a car park covering a significant area, or fencing.
1.3 Our information sheet, Commons: Buildings, fences and other works on common land in England and Wales, explains that under, s38 of the Commons Act 2006 (‘the 2006 Act’), the consent of the Secretary of State for Environment, Food and Rural Affairs is required for the erection of fencing, building and other works on common land.
1.4 Under present general legislation, no one has a duty to take legal action in the event of unauthorised works.
2.1 Under s41 of the 2006 Act, any person may apply to the county court for the removal of unlawful works erected since 1 October 2007 on land registered as common land in England, or 1 April 2012 on such land in Wales.
2.2 Previously (under s194 of the Law of Property Act 1925), only those with a legal interest in the land could take action, namely the owner and commoners, and the parish, district and county council within whose area the common lies.
2.3 An application can be made to ask the court for an order for the removal of unauthorised buildings, fences or other works on common land and restoration of the land. Any order is at the discretion of the judge, who does not necessarily have to order removal, even if the works do not have s38 consent.
2.4 Taking legal action is generally an expensive and lengthy procedure. It is essential that you obtain evidence to support your case, including witnesses, photographs and documents. If you are unsuccessful, the court may order that you pay the defendant’s costs. Even if you are successful, the defendant may not be ordered to pay all (or even any) of your own costs, and the defendant may in any case have no means to pay.
2.5 Costs are always at the discretion of the court and an adverse costs order may be made against a winning party if the court feels a claim has been pursued in an unreasonable way.
2.6 Other steps you can take will be campaigning and lobbying. We set out below different courses of action that aggrieved inhabitants and commoners can take against an unlawful work.
3.1 In order to build up a good, substantive case against the unlawful work, some thorough, initial background research is necessary:
a. Ensure the work is relatively recent in origin (ten years is the absolute maximum, but it is preferable to act as soon as there is knowledge that the works are to take place), that it requires consent, and that it does not have consent. A database is available of decisions in relation to commons and greens in England.
b. Find out who owns the land, and find out if the owner’s permission for the work was obtained.
c. Find out what commoners’ rights exist and whether the unlawful work interferes with the exercise of common rights.
d. Check to see if there are any special rules and procedures for the common such as:
- i) on commons whose scheme for regulation is made under Part I of the 1899 Commons Act, the ‘managers’ of the common (a local authority) have a duty to preserve the natural aspect of the common and keep it free of encroachments;
- (ii) on National Trust (NT) commons, the NT has a duty to resist and abate all enclosures and encroachments on the land;
- (iii) on the Dartmoor commons in Devon, under the Dartmoor Commons Act 1985, the Dartmoor National Park Authority is empowered to assist ‘any commoner in the maintenance of his rights of common’;
- (iv) other local acts giving powers to conservators and local authorities to defend commons.
e. Check to see whether there are any by-laws affecting the common, which might render the work an offence capable of prosecution.
f. Find out if the common is subject to s193 of the Law of Property Act 1925, which gives the public a legal right to walk and ride over the common. This right is additional to the general right to walk on all commons under the Countryside and Rights of Way Act 2000.
4.1 Any work on a common requires the permission of the owner of the common. The owner can take action under the normal laws of trespass against a work for which permission has not been sought. Persuading the owner to take action is probably the easiest course, whether it is legal action, or practical action such as abating the nuisance. However, the owner may be the perpetrator.
4.2 Caution is advised before taking physical action to remove other than very small obstructions or encroachments. If damage is done to the object being removed, that in itself could result in liability for some form of legal action. In relation to objects with some value, it is better to apply to the courts than risk being sued or prosecuted for criminal damage.
5.1 Under s45 of the 2006 Commons Act, any common with no known owner is under the protection of the local authority. Any local authority (county, district, parish or community council, national park authority or conservation board for an area of outstanding natural beauty) may take all necessary steps to protect it, as if it were the owner in possession, and to institute proceedings for any offence.
6.1 Under common law, where the rights of a commoner are interfered with (whether by the owner of the common, a stranger to the common or another commoner) the remedy is an action for damages or a claim for an injunction. Except in a few cases, the commoner is not allowed to take the law into his own hands.
6.2 The commoner may abate a nuisance which wholly excludes the commoner from exercising rights of common, but if the nuisance amounts only to a partial exclusion, a commoner should not initiate such action. The proper remedy is to apply to the court for a declaration of the commoner’s rights and an injunction. Where a fence interferes with the rights of a commoner, the commoner is entitled by law to pull down as much fence as is necessary to enable the exercise of the commoner’s rights.
7.1 Under s30 of the Commons Act 1876, an illegal inclosure of, or encroachment on, any part of a common not covered by the last paragraph, may be made the subject of a removal order by the county court. It is not clear whether anyone without a legal interest in the common (as owner or commoner) can initiate the necessary action.
8.1 Another step could be to press those responsible to make an application under s38 to legalise the work. In making a decision the Secretary of State for Environment, Food and Rural Affairs (in England) or the Welsh Ministers must consider, in the context of the enjoyment of the common as an open space, the ‘interests of the neighbourhood’ and the public under s39 and there is an opportunity to object. This is explained in more detail in our information sheet: Buildings, fences and other works on common land.
8.2 An application can be worth pressing for and, if consent is withheld, the county court may be more confident to make an order for the removal of an unlawful work and restoration of the land to its original condition. Otherwise, there is a risk that a court might adjourn proceedings while the defendant is allowed to pursue an application.
8.3 The following section explains how any member of the public, including a charity, may take action in the county court against any unlawful ‘building, fence or other work’ erected on registered common land after 1 October 2007 in England or 1 April 2012 in Wales. The procedure for court action is as follows.
9.1 In cases not covered by any approved protocol, the court will expect the parties (in accordance with civil procedure rules) to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for proceedings.
9.2 Parties to a potential dispute should follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation. The procedure should not be regarded as a prelude to inevitable litigation. It should normally include:
- a. the claimant writing to give details of the claim;
- b. the defendant acknowledging the claim letter promptly;
- c. within a reasonable time, the defendant giving a detailed written response; and
- d. the parties conducting genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings.
9.3 The claimant’s letter should:
- a. give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;
- b. enclose copies of the essential documents which the claimant relies on;
- c. ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period (for many claims, a normal reasonable period for a full response may be one month.);
- d. state whether court proceedings will be issued if the full response is not received within the stated period;
- e. identify and ask for copies of any essential documents, not in the claimant’s possession, which the claimant wishes to see;
- f. state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and
- g. draw attention to the court’s powers to impose sanctions for failure to comply with the practice direction (CPR 1.1 (2)(a), (b) and (c)) and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.
9.4 The defendant should acknowledge the claimant’s letter in writing within 21 days of receiving it. The acknowledgement should state when the defendant will give a full written response. If the time for this is longer than the period stated by the claimant, the defendant should give reasons why a longer period is needed.
9.5 The defendant’s full written response should, as appropriate:
- a. accept the claim in whole or in part and make proposals for settlement; or
- b. state that the claim is not accepted.
9.6 If the claim is accepted in part only, the response should make clear which part is accepted and which part is not accepted.
9.7 If the defendant does not accept the claim or part of it, the response should:
- a. give detailed reasons why the claim is not accepted, identifying which of the claimant’s contentions are accepted and which are in dispute;
- b. enclose copies of the essential documents on which the defendant relies;
- c. enclose copies of documents asked for by the claimant, or explain why they are not enclosed;
- d. identify and ask for copies of any further essential documents, not in the defendant’s possession, which the defendant wishes to see (the claimant should provide these within a reasonably short time or explain in writing why this is not done.);
- e. state whether the defendant is prepared to enter into mediation or another alternative method of dispute resolution.
9.8 The parties should consider whether some form of alternative dispute-resolution procedure would be more suitable than litigation and, if so, endeavour to agree which form to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. The courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that, if the protocol is not followed (including this paragraph), the court must have regard to such conduct when determining costs.
9.9 This information can be found online here.
10.1 You will need to complete a Part 7 claim form (N1) which you can obtain from your local county court or online, or instruct a solicitor to do so. You can also obtain notes on completing the form from the same source. An example of the form and an illustration of suggested draft particulars of claim are shown in the appendix.
10.2 Once you have completed the form, you should photocopy it and the defendant’s guidance notes (which the court will give you). You must send to the court one copy for each defendant and one copy for the court.
10.3 For free legal information, help and advice, contact Community Legal Services Direct on 0845 345 4345 or visit gov.uk/legal-aid/overview. The Open Spaces Society has a list of solicitors experienced in commons and greens who can be instructed privately for a fee.
10.4 You will need to pay a fee to the court, unless you can apply for an exemption (EX 160A Court fees, do I have to pay them?). The fee is likely to be £175. If the matter proceeds you will also have to pay £110 for allocation to a particular track (process), and further fees may be required, such as the trial fee.
10.5 The court has various guidance notes about the court process which should be read carefully (see below).
10.6 A defendant under s41 of the Commons Act 2006, or under s30 of the Commons Act 1876, aggrieved by an injunction or order of the county court, or a complainant aggrieved by a refusal to grant such an injunction or order, may (on giving security for costs) appeal to the Court of Appeal.
11.1 It is vital that you take action as soon as possible. A court may refuse an order where a person has stood by and watched work being done, without taking action until after it is completed.
12.1 Where legal action is not appropriate, or you feel it is too risky there are other useful things you can do.
12.2 Form an action group to do the following:
a. Create adverse publicity: once you have thoroughly researched the problem, we recommend that you give it adverse publicity through local radio, papers and TV, and by holding a local public meeting to voice your concern and get support.
b. Lobby councillors and MPs: lobby your local councillors and MPs and urge them to take action. If the common is subject to a management scheme under Part I of the Commons Act 1899, press the council to follow the duties of the scheme if it is relevant.
Lobbying by the Open Spaces Society and others has led to the following action on common land.
In July 2006, Hertfordshire City Council issued proceedings under s194 of the Law of Property Act 1925, for the removal of unlawful fencing at Well Green Common, Brickendon.
In May 2004, the City and County of Swansea issued proceedings for the removal of unlawful gates, planting and fencing and for the breach of a 1996 temporary consent to erect gates which expired in September 1999, on Mynydd Lliw Common, Grovesend, north-west of Swansea.
Shropshire County Council threatened legal action against the owner of Llynclys Common near Oswestry for an unlawful fence. The owner applied for retrospective consent under s194 of the Law of Property Act, which was refused. After further pressure from the council the owner removed the fence (2003).
After being urged by the Open Spaces Society and others, Rochdale Metropolitan Borough Council threatened legal action against a commoner who had erected unlawful fencing on Blackstone Edge Common. The threat worked and the fencing was removed (July 2001).
Norfolk County Council agreed to take action (March 1990) against unlawful fencing on Etling Green Common, East Dereham, after much lobbying by a local residents’ group and the Open Spaces Society.
13.1 Where there is threat of an unlawful work, in addition to the above points we recommend the following.
14.1 In order to ensure that your common is well protected and managed you can set up a group to prepare a management plan, monitor the common, and carry out practical conservation work. You will show that people are caring for the common and keeping a watchful eye on it, and you may ward off any potential encroachments. Make sure you have a good map with the boundaries of the common marked.
14.2 As part of your activities you may like to ‘Beat the Bounds’ of your common. This is an ancient custom which is carried out on Rogation Sunday (the fifth Sunday after Easter) every year. The event will remind local people just where the boundaries of their commons and greens are, and may discourage those all-too-frequent encroachments (see information sheet A3).
15.1 Taking photographs from a known point with a record of the date can be useful as evidence to prevent encroachment in the future.
Available from the county court or online.
EX 301 Making a claim, some questions to ask yourself
EX 302 How to make a claim
EX 160A Court fees, do I have to pay them?
EX 50 County court fees
EX 342 Coming to a court hearing, some things you should know
N1A Notes for claimant on completing a claim form
N119A Notes for guidance to complete particulars of claim
EX 370 Your first time at court, what can you expect?
IN THE (insert) COUNTY COURT
CLAIM No._______
IN THE MATTER OF THE COMMONS ACT 2006
B E T W E E N:
(insert name)
Claimant
-and-
(insert name)
Defendant
__________________________________________
PARTICULARS OF CLAIM
Works on a common without Commons Act 2006 section 38 consent
__________________________________________
1. The land the subject of this action is situated at (insert address) and forms part of land commonly known as (insert) Common (“the Common”). It is approximately delineated in Plan A annexed to these Particulars of Claim edged green. The full extent of the Common is delineated in Plan B annexed to these Particulars of Claim and coloured green.
2. The Claimant is entitled to bring this action pursuant to section 41 of the Commons Act 2006.
3. The Claimant confirms that the unlawful works have been undertaken by the Defendant since 1 October 2007.
[if applicable, include number 4:]
4. The Defendant is the registered owner of that part of the Common approximately edged in red on Plan A under title number (insert title number if registered).
5. On (insert date) the Common was finally registered under the Commons Registration Act 1965 as a common with registration number (insert commons registration number) by the (insert) County Council.
6. The Defendant has unlawfully and without consent of the Secretary of State as required by s38 of the Commons Act 2006 erected or constructed or caused to be erected or constructed on the Common (insert nature of encroachment or obstruction eg. Fencing, gates, buildings, etc), and detailed on the afore-mentioned plan by black crosses, and as a result access to the Common is impeded.
7. The Defendant has wrongfully refused and continues to wrongfully refuse to remove any of the said (insert nature of encroachment or obstruction) from the Common.
AND the Claimant claims:
a. an order under the Commons Act 2006, s41 that the Defendant removes all of the said (insert nature of encroachment or obstruction) and restores the Common to a reasonable condition;
b. (damages, however only include if loss can be established)
Statement of Truth
The Claimant believes that the facts stated in these Particulars of Claim are true.
____________________________________
Claimant
(insert Claimant’s address for service)
To: The District Judge of the (insert) County Court and the Defendant.
IN THE (insert) COUNTY COURT
CLAIM NO:
IN THE MATTER OF THE COMMONS ACT 2006
BETWEEN
(insert)
Claimant
and
(insert)
Defendant
PARTICULARS OF CLAIM
(insert Claimant’s name)
(insert Claimant’s address for service)
The Open Spaces Society is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this paper.
© Open Spaces Society, January 2023