Do you want to shape the future of paths and open spaces?
We need your help to keep our technical information, analysis & advice effective and up to date - your support means we can employ expert caseworkers.
This fact sheet covers the following information about buildings, fences and other works on common land in England and Wales. A practical guide for those wishing to carry out a lawful operation on a common and those wanting to defend a common against unlawful or undesirable operations.
- Introduction
- Interpretation
- Commons restrictions generally
- When s38(1) applies
- Operations governed by s38(1)
- Applying for consent under s38 and similar legislation
- Remedies for unauthorised operations
- The relationship of consent requirements with planning controls
- Operations not subject to s38 and similar legislation
- Exempted works
- Exchange land
- Further reading
- Appendix 1
1.1 This information sheet provides guidance on the regulation of buildings, fences and other works on common land in England and Wales. It mainly is about the rules which apply to such works under section 38 of the Commons Act 2006, but it contains references to other relevant legislation.
1.2 The information sheet applies both to England and to Wales. Different secondary legislation applies in each territory, and where applications are made for consent under s38, the application must be made to different bodies.
1.3 Those who are considering undertaking works on common land are asked to consult first, and we recommend the guidance in A Common Purpose.
2.1 Glossary
AONB is a designated area of outstanding natural beauty.
GPDO(E) means the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596).
GDPO(W) means the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418), as amended, as it applies in Wales
OSS is the Open Spaces Society.
PINS is the Planning Inspectorate. In Wales, the same functions are exercised by Planning and Environment Decisions Wales (PEDW), a branch of the Welsh Government
s38 and similar references are to sections of the Commons Act 2006.
ANA refers to the relevant national authority — the decision-maker on applications for consent under s38 or similar legislative requirements, ie the Secretary of State for Environment, Food and Rural Affairs, and the Welsh Ministers. In practice, in England, the functions of the Secretary of State in relation to s38 consent invariably are exercised by PINS. The relevant minister for planning appeals and call-ins is the Secretary of State for Levelling Up, Housing and Communities.
SSSI is a designated site of special scientific interest.
TCPA means the Town and Country Planning Act 1990.
3.1 Nearly all commons are subject to special restrictions on buildings, fencing or other works, whether under s38 of the Commons Act 2006 or otherwise. These special restrictions are in addition to controls under the TCPA or other Acts which apply to all land. Certain commons are governed by local Acts or schemes which relax some of these restrictions either completely or after obtaining the consent of the ANA.
3.2 Some local Acts allow works, especially roads or limited fencing, on particular commons without the need for specific consent. These commons are usually, but not always, in towns where the commoners’ rights have all been extinguished.
3.3 Other Acts (or schemes made under them) contain their own requirements for obtaining ministerial consent to particular works on the commons governed by that legislation.
Examples are:
a. schemes of regulation and management under Part I of the Commons Act 1899;
b. articles 12 and 17 of the Greater London Parks and Open Spaces Order 1967 (which is scheduled to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967, which relate to recreational and similar facilities, including new roads or paths, on commons owned or managed by London borough councils other than the City of London Corporation;
c. section 23(2) of the National Trust Act 1971, which relates to all National Trust commons held inalienably, except for certain works which are permitted under section 29 of the National Trust Act 1907.
In each of these cases, these requirements endure notwithstanding the enactment of s38, but, broadly speaking, for the purposes of obtaining consent under each provision, the procedural and policy requirements of ss39 and 40 have been imposed in each case. However, the position is less straightforward in relation to works on commons subject to a scheme for the regulation and management of common land under Part I of the Commons Act 1899, where s42 enables consent to be sought under s38, instead of under the scheme, but only in relation to the classes of works described in s42. It should be noted that, where consent is sought under the 1967 Order or the 1971 Act, an application still will be required to satisfy the relevant tests in that legislation.
3.4 Sometimes an older Act forbids, absolutely, any new works on a common and that restriction still applies unless a later Act overrides it. The 1967 Order permits (subject to consent) building, fencing or other works for particular purposes which were forbidden in schemes governing some individual London commons. Other local London and other legislation permits some road improvements not otherwise allowable.
3.5 In all other cases, building, fencing or other works on commons are governed by s38. This requires the consent of the ANA unless the section otherwise provides or unless it falls within an exemption order made under s43.
3.6 It is, therefore, important to know what legislation, powers or restrictions might specifically affect a common.
3.7 Rights of adjoining owners
3.7.1 The owner or occupier of property adjoining a common may need access to the common in order to repair or maintain the premises. It might be necessary to erect scaffolding or, for safety reasons, erect temporary fencing around a strip of common. Even if the adjoining owner has no other right for the purpose, this is permitted under the Access to Neighbouring Land Act 1992, by court order if the owners of the common decline to allow the access subject to reasonable conditions.
3.7.2 An adjoining owner also has a right to rebuild or place a new wall along the boundary with foundations that extend under the common, subject to a notice and procedure under the Party Wall etc Act 1996. The building owner will have to pay for a surveyor to protect the interests of the owners of the common.
3.7.3 While adjoining property may have a right of way over and to maintain an existing track on the common, its owner has no right to alter or widen it, or improve the surface, without the consent of the owners of the common and in accordance with the procedure described in this guide unless a specific right can be proved.
4.1 sS38 applies to:
a. any land registered as common land;
b. land not so registered which is—
(i) regulated by an Act made under the Commons Act 1876 confirming a provisional order of the Inclosure Commissioners: or
(ii) subject to a scheme under the Metropolitan Commons Act 1866 or the Commons Act 1899;
c. land which is in the New Forest and is subject to rights of common.
4.2 While the identification of land which is registered common land should be relatively straightforward, by reference to the registers held by commons registration authorities, the same cannot be said for land in sub-paragraphs (i) and (ii) of paragraph (b). Such land may well be registered — but s38 applies even if it is not registered. The existence of an order or scheme, and the extent of the land subject to it, may usually (but not unfailingly) be identified, in England, by reference to and interrogation of the data shown on the MAGIC website operated by Natural England, using the Countryside and Rights of Way Act, Section 15 Land (England) layer. The local authority (in England, the district council in a two-tier authority area) may also hold information about an order or scheme, and the National Archives holds such information for both England and Wales.
4.3 It should be noted that the precise extent of land subject to rights of common in the New Forest is not publicly recorded. But the Forestry Commission, which manages the Crown lands in the New Forest, has powers for temporary inclosure and other purposes under the New Forest Acts which usually will obviate the requirement for s38 consent on Crown lands.
4.4 S38 does not generally apply to town or village greens. However, where a green falls within paragraphs a. to c. above, consent then will be required to restricted works. It is not clear whether works on a green to which consent is granted under s38 could nevertheless be in breach of s12 of the Inclosure Act 1857 and s29 of the Commons Act 1876.
4.5 Subsection (6) of s38 exempts from the requirement for consent the following:
a. works on any land where those works, or works of a description which includes those works, are carried out under a power conferred in relation to that particular land by or under any enactment;
b. works on any land where the works are carried out under a power conferred by or under any enactment applying to common land;
c. works authorised under a scheme under the Metropolitan Commons Act 1866 or the Commons Act 1899 without any requirement for any person to consent to the works;
d. works for the installation of electronic communications apparatus for the purposes of an electronic communications code network.
4.5.1 The terms of these exemptions reward careful analysis. The effect of paragraph a. is to exclude from the requirement for s38 consent works which are authorised under an enactment expressly in relation to that land. For example, an Act which authorises the construction of specific works, such as a railway, on land identified in the Act, will remove any requirement for s38 consent (although it may be expected that the Act itself will make express provision for the release and replacement of any common land affected).
4.5.2 Paragraph b. excludes from the requirement for s38 consent works which expressly are authorised in relation to common land generally (but not in relation to any particular site). In national legislation, there are a small number of examples, including s45(2) (getting materials for making roads) and s82(4) (cattle grids and bypasses) of the Highways Act 1980; and s34(4) (burial of diseased animal carcases) of the Animal Health Act 1981. Further provisions may be found in local legislation, such as s12 (use of common land for highways) of the Surrey Act 1985.
4.5.3 Paragraph c. excludes from the requirement for s38 consent works authorised under a scheme as mentioned in that paragraph, but only where the scheme does not require any person to consent to the works. Thus, for example, a scheme made under Part I of the Commons Act 1899 may authorise the managing authority temporarily to erect an open fence to keep cattle and horses from grazing on a designated sports pitch, and s38 consent would not then be required.
4.5.4 Paragraph d. excludes a wide range of installations within the scope of an electronic communications code network, within the meaning of the Communications Act 2003. Although the exclusion, as originally enacted in s194, embraced telegraph lines and the like, it now excludes mobile communications masts and base stations, notwithstanding their substantially greater footprint and impact.
4.5.5 Note that subsection (6) does not contain any exclusion for works which are authorised under any other enactment other than one which satisfies one of the tests in the subsection. Therefore, for example, a general power conferred on a local authority to do something, such as to erect public conveniences, or on a statutory undertaker to install infrastructure works, does not override the requirement for s38 consent.
4.5.6 National Trust commons are excluded from the scope of s38, because they are regulated under the National Trust Acts.
5.1 Subject to the exceptions described above, subsection (1) of s38 applies to ‘restricted works’ which are:
a. works which have the effect of preventing or impeding access to or over any land to which s38 applies;
b. works for the resurfacing of land (see below).
5.2 It appears that the access contemplated in paragraph a. is any legitimate form of access across the common, regardless of whether the access is pursuant to any statutory right, and that therefore works which restrict access on foot, on horseback, or for those with disabilities, will fall within the scope of s38 — even if there is no enforceable right of access to the common for that purpose. It may be also that works which restrict legitimate vehicular access, such as for commoners’ vehicles or those with private rights of way, also are regulated. It is suggested that, if access were confined to mean legally-enforceable rights of access, such as a statutory right of access, it would exclude any requirement for consent to works on commons, such as golf courses, over which there may be only de facto access, and that this plainly was not the intention of s194, and therefore is unlikely to be the intention of the successor provision made in s38.
5.3 Subsection (3) defines works to include in particular:
a. the erection of fencing,
b. the construction of buildings and other structures,
c. the digging of ditches and trenches and the building of embankments.
However, it should be noted that ‘works’ as defined are not inevitably ‘restricted works’, and, having established whether an undertaking fits the description of ‘works’, it then will be necessary to ascertain whether the works are restricted because they do ‘have the effect of preventing or impeding access’.
5.4 Subsection (4) defines resurfacing as follows: if the works 'consist of the laying of concrete, tarmacadam, coated roadstone or similar material on the land (but not if they consist only of the repair of an existing surface of the land made of such material)'. The words 'or similar' in this context mean 'of the same class'. And the class here appears to be one of a sealed surface which is impervious to water. Thus a gravel surface does not require s38 consent.
5.5 It is suggested that works, such as fencing, which truly are erected on the boundary of the common are not subject to s38, because they are not on the common — provided of course that the location of the works is consistent with the boundary of the common as marked on the register map. It cannot be the intention of s38 to require the owners of land adjoining a common, who may well be under a customary duty to fence against the common, to obtain the consent of the ANA in order to fulfill that duty.
5.6 S38 applies whether the operations are permanent or temporary, although works which are in duration very brief and of low impact, such as fencing around a temporary excavation, may be so slight as not to require s38 consent in practice. Guidance published by PINS suggests that certain works, of minimal impact, do not in practice require consent: eg shooting butts that are smaller in area than 10m², temporary sheep pens enduring for fewer than 28 days per annum, planting trees and shrubs that do not form a continuous barrier. In Hambledon Rural District Council v Hinde, the court did not consider the erection of low railings (which could be stepped over) on manorial waste in the centre of a village as impeding or interfering with public access.
5.7 Examples of works which are likely to be restricted are new sealed roadways or car parks with sealed surfaces, the concreting or tar paving of existing rough tracks, the construction of ditches, embankments or the installation of other anti-vehicle devices.
5.8 Also included are utility works (eg electricity, gas, water, sewerage or drainage). The construction of those laid underground, without the need for surface apparatus, should not prevent or impede access for more than a short period and, if the land is properly restored expeditiously, it may be unnecessary to insist on action under s38.
5.9 Nevertheless, the owner of an affected common will wish to ensure that permission has been given subject, if appropriate, to proper conditions and financial arrangements.
5.10 Pylons, poles, wind turbines, transformers and other non-communications apparatus above ground also require consent under s38 unless erected under compulsory powers.
5.11 An alternative to applying for consent under s38 is to use the exchange-land procedure in s16.
6.1 If a proposal is also subject to planning permission, this should be applied for before applying for consent under s38. However, if the planning application is called in, or an appeal is lodged against a refusal, it may be desirable to submit the consent application before the planning application or appeal is considered by PINS/PEDW or an inspector at a public inquiry.
6.2 The prospective applicant for consent under s38 can obtain or download forms and guidance notes from:
In England
Defra Casework team
The Planning Inspectorate
Room 4/05 Temple Quay House
2 The Square
Bristol BS1 6PN
Email: CommonLandCasework@planninginspectorate.gov.uk
Tel: 0117 3726210
In Wales
Planning and Environment Decisions Wales
Crown Buildings
Cathays Park
Cardiff
CF10 3NQ
Email: PEDW.Casework@gov.wales
Tel: 0300 0604400
The procedural requirements in relation to an application under s.38 are contained in the Works on Common Land, etc. (Procedure) (England) Regulations 2007 and the Works on Common Land, etc. (Procedure) (Wales) Regulations 2012.
6.3 The following paragraphs deal with the policy aspects of an application. The ANA for each of England and Wales has published policy guidance on the determination of applications for consent in relation to common land, and those concerned with such applications are strongly advised to familiarise themselves with it.
6.4 Under s39, in deciding whether to grant consent, the ANA must have regard to
• The interests of persons having rights in relation to, or occupying the land (and in particular persons exercising rights of common over it;
• The interest of the neighbourhood;
• The public interest;
• Any other matter considered to be relevant.
6.5 This means that the ANA must be satisfied that it is expedient to give consent having regard to the interests of the neighbourhood as well as to private and public interests in the common, and must also take into account any other relevant factors, including any objections which are lodged. The decision will be based on the merits of the proposal.
6.6 In ADM Milling Ltd v Tewkesbury Town Council, the High Court held that, in granting consent under s194 (the predecessor to s38), the Minister was required to balance the public and private interests in the common, and such consent ‘extinguishes or suspends rights of common to the extent that they would be inconsistent with that which the Minister has consented to’, and also extinguishes or suspends so far as necessary any public rights of access. For example, if consent is granted to erect a sports pavilion on the common, the commoners cannot complain that their rights no longer are exercisable over the ground occupied by the pavilion, nor the public that their rights of access no longer are exercisable within the building. It is submitted that the same approach must apply to consent under s38, but that it ought to be clear, from any consent granted, and where there might be doubt, whether the intention is to exclude the exercise of rights of common or public rights of access (eg if consent is sought to a fence around a works compound). It remains uncertain whether the same approach can be applied to override any requirement of the owner to permit consented works. It also will be noted that s38 contains no provision for any compensation to a commoner or owner (although it might be expected that the ANA will refuse consent where an application would have significant adverse impact on these interests).
6.7 The public interest is defined as
• nature conservation;
• the conservation of the landscape;
• the protection of public rights of access to any area of land; and the protection of archaeological remains and features of historic interest.
6.8 WhileThe ANA will view these criteria in the light of the overriding objective of protecting, maintaining or improving the common, and of ensuring that the overall stock of common land is not diminished. The policy of the ANA in relation to common land consents has been published online, and should be referred to in the context of every application for consent. The Secretary of State has published the Common land consents policy (2015). The Welsh Government has published Common Land Consents Guidance (2014) to similar effect.
6.9 An application will be considered only to the extent that the proposals have been brought to the notice of the public. Therefore, it should include all buildings, fences or works (including gates and stiles) ancillary to a main proposal, and all should be clearly specified and shown on a map or plan of the common, at a sufficient scale, also indicating the boundaries of the common as registered (or otherwise defined) and the Ordnance Survey national grid references. The proposed works should be shown in red and the boundary of the common in green.
6.10 Not later than seven days after an application is made, the applicant must ensure that the notice is:
a. advertised in at least one main local newspaper
b. sent to
• the owner of the land
• any commons council or association
• all active commoners
• others with a legal interest in the land, such as a tenant or licensed grazier
• any local authority including a parish or community council
• Natural England or Natural Resources Wales
• OSS
• English Heritage or Cadw
• national park authority (if in a national park)
• AONB conservation board (if in an AONB)c. posted at the main points of entry to the commons
d. placed at the inspection point with the application and map.
6.11 The notice should be sufficiently detailed to enable anyone reading it to know whether he or she may wish to object to the application. It should indicate where a map or plan of the proposal can be inspected, and this should be readily accessible to persons living within reach of the common. PINS/PEDW have published guidance on the form which a notice should adopt. Where an applicant is in any doubt as to the content of an application, or the form of notice to be given, the applicant should contact PINS/PEDW for informal advice, as, if on submission the application or notice is found defective, the applicant may be required to renotify, and to readvertise, at substantial cost.
6.12 The closing date for objections to PINS/PEDW should be not less than 28 days from the date of the first newspaper advertisement. Objections may be made by email, and are submitted direct to PINS/PEDW.
6.13 The applicant must send to PINS/PEDW the application form and all supporting documents as soon as the last advertisement has been published.
6.14 The information given should be as full as possible, particularly with regard to the commons registration particulars (or if it is not registered, why the common otherwise falls within the scope of s38), the proposed operations, the affected and intended benefits to the neighbourhood and private interest, and why it is necessary to undertake the works on the common where this is not self-evident.
6.15 Consent can only be given or refused for the application as submitted. PINS/PEDW can impose conditions on a consent that might be thought desirable. However, the application should also include any limitations on time and other conditions which the applicant is proposing or accepting, and these should include any imposed under any planning permission. (It is also possible to apply to vary or revoke any modification or condition in relation to any consent given under s38, within three months of notice of grant of the consent.) PINS/PEDW may consider making amendments to an application at the applicant’s request, but is unlikely to agree to do so if the effect substantially alters the nature of the application as notified to the public.
6.16 The OSS will consider the proposal in accordance with its policy set out in appendix 1 to this guide.
6.17 Comments and objections received will be sent to the applicant, and the applicant afforded an opportunity to respond. PINS/PEDW will consider as much as it can by exchange of correspondence with all concerned.
6.18 Where more evidence is needed, or the evidence requires to be tested, a site visit, hearing or a public inquiry may be arranged, depending on the particular circumstances of the case.
6.19 In most cases, a decision will be made on the papers by an official. In more complex cases, an inspector will be appointed to make a decision, usually after making a site visit, and perhaps holding a hearing or public inquiry. In Wales, a decision may be made by the Welsh Ministers on the basis of a report by an inspector: the same practice is available in England, but has never been adopted.
6.20 The decision will be a consent, conditioned consent or refusal of the application as submitted, subject to the limitations or conditions offered at the same time. A successful applicant under this procedure is not absolved from any other necessary legal requirements affecting the proposal, such as a requirement to seek planning permission. However, in relation to works on a SSSI, consent under s38, granted after statutory consultation with Natural England or Natural Resources Wales, confers consent in relation to the designation of that site.
6.21 A consent may be granted subject to a time limit. In that event, the works will be lawful during the term of the consent. If it is proposed to retain the works beyond the term, a fresh application must be made in good time for s38 consent.
6.22 Potential applicants are advised to consult informally in advance of an application with all those likely to be concerned, including the OSS, so that the formal application to be submitted contains the proposal, limitations and conditions that are likely to be the most acceptable to everyone. This will help ensure that no costly or time-consuming amendments need to be made to the application.
Do you want to shape the future of paths and open spaces?
We need your help to keep our technical information, analysis & advice effective and up to date - your support means we can employ expert caseworkers.
7.1 Under section 30 of the Commons Act 1876, an illegal inclosure of, or encroachment on, any part of a common 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. It also appears that any works to which consent has been granted under s38 are immune from enforcement action under section 30 of the 1876 Act (see ADM Milling Ltd v Tewkesbury Town Council above).
7.2 Where consent has not been properly obtained under s38, s41 provides that any person may apply to the county court for an order for the removal of the work and restoration of the land to its original condition.
7.3 That is the only direct remedy available for a breach of s38 and it is also available when the extent of operations exceeds that which has been given consent. The only other possible remedy is for the planning authority to seek enforcement for any breach of development control requirements.
7.4 The s41 remedy is also available against someone who has carried out operations forbidden by another Act to which a common may be subject because, therefore, the works are not exempt under s38.
7.5 When a common is owned by a local authority which is itself the perpetrator of the unauthorised operations, and no one is prepared to use the s41 remedy, a person who can establish sufficient standing may seek judicial review in the High Court. It must be applied for within three months of the cause which gives rise to it. This is not to be undertaken lightly as it can be costly. The court may refuse to grant leave for judicial review where the local authority has carried out the works in its role as landowner (eg a pen to enable grazing animals to be corralled), and is not exercising the functions of an authority (eg to construct a new road).
7.6 When a local authority is at fault, apart from the possibility of judicial review mentioned above, a complaint to the Local Government Ombudsman is another method of expressing public displeasure but even then, the complainant has to show some personal disadvantage.
7.7 Where the ownership of a common is not known, s45 of the Commons Act 2006 enables a local authority (including a parish or community council) in whose area the land (or part of it) is situated, to take all necessary steps to protect it, as if it were the owner in possession, and to institute proceedings for any offence.
7.8 To find out more about what you can do, see our information sheet How To Take Action Against Unlawful Encroachments and Works On Commons.
7.9 S41 may be used by a member of the public only against a work or encroachment erected since 1 October 2007. In practice, the longer the elapse of time since the works were done, the less likely that a court will be minded to order the works to be removed.
8.1 Apart from the specific consents that may be required under s38, operations may be subject to planning legislation.
8.2 Agriculture and forestry
8.2.1 The use of land for agriculture or forestry is completely exempt from planning control because it does not constitute development under TCPA section 55(2)(e). ‘Agriculture’, as defined in TCPA section 336(1), includes the keeping of livestock for the usual farming purposes but not horses for riding or hunting. The stationing of a caravan for the purpose of providing a weather-proof place for storage of and mixing food for cattle has been held to be ancillary to the agriculture use and not a material change of use requiring planning permission. Unless some hardstanding has been provided without the necessary consent, it might be difficult to deal with such a caravan under s38.
8.2.2 A common grazed by a commoner will not normally be within the extent of an agricultural unit (eg a farm), because the commoner does not occupy the common. Therefore deemed permission under the GPDO(E) or (W) for other agricultural purposes is not likely to be relevant.
8.3 Miscellaneous GPDO permitted development
8.3.1 The following works possible on commons, are ‘permitted development’ under the following parts of schedule 2 to the GPDO(E) and (W) but nevertheless require consent under s38:
- Part 2—Minor operations—including:
The erection or alteration of a gate, fence, wall or other enclosure more than one metre high adjoining a vehicular highway or two metres high elsewhere, and not part of an enclosure surrounding a listed building.
- Part 4—Temporary buildings and uses:
Buildings, moveable structures, works, plant or machinery required during permitted operations (other than mining) on or adjoining land.
- Parts 9 and 12 (GDPO(E)) or Parts 12 and 13 (GDPO(W))—Development by local or highway authorities:
Small ancillary building or works for the purpose of the authorities’ functions on the land, lamp standards, kiosks, shelters, seats and other minor items, or for or incidental to the maintenance or improvement of adjoining highways.
- Part 13 (GDPO(E)) or Parts 14, 16 and 17 (GDPO(W))—Works by certain bodies relating to watercourses, land drainage and sewerage.
e. Parts 15 and 16 (GDPO(E)) or Part 17 (GDPO(W))—Works by statutory undertakers. Many of these, such as public-gas transporters (ie pipelines), will, when completed, be wholly underground except for indicators and warning. But works relating to electricity undertakers, will often be above ground and this is considered more fully below. Communications networks are exempt from s38.
8.4 Electricity installations
8.4.1 Under GPDO(E), part 15B of Schedule 2 or GDPO(W) part 17G of Schedule 2, those electricity undertakers which have appropriate licences under the Electricity Act 1989 for compulsory acquisition, have permitted development rights to install on, over or under any land electric lines and related transforming or switching stations or chambers and apparatus, and the necessary supporting poles or towers. But the consent of the Secretary of State or Welsh Ministers is required under s37 of the 1989 Act, for an overhead line unless exempt under that section or the Overhead Lines (Exemption) Regulations 1992 (SI 1992/3074) and the Overhead Lines (Exemption) (England and Wales) Regulations 2009 (SI 2009/640). These provide special protection within a national park, AONB, regional park, SSSI or conservation area.
8.4.2 Under the 1989 Act, Schedule 9, those entitled to generate or supply electricity must, in any case, have regard to the desirability of preserving natural beauty, conserving flora, fauna, natural features, historic buildings and objects of archaeological interest and do what is reasonably possible to mitigate the effect of proposals on them.
8.4.3 S38 consent may be needed for electricity lines and apparatus where they constitute restricted works. Where the impact is minimal (eg a small number of electricity poles), it is arguable that the works are not restricted, and consent is not needed.
8.5 Dealing with operations requiring planning permission
8.5.1 All building, fencing and works not exempt from planning control and not deemed to be permitted development require planning permission and it is preferable that this is obtained before application is made for consent under s38. The necessary publicity for this will give possible objectors their first opportunity to make their views known.
8.5.2 Those concerned with the protection of a common must be alert to take appropriate action on any planning application affecting it even though they may anticipate the need for a separate consent under s38 or similar legislation. The absence of objection to a planning application which ought to have been known about may be used in argument against later objections to a s38 consent application.
8.5.3 Even if a proposal is considered objectionable by the users of a common, planning permission might still be given for valid planning reasons, and objections should be phrased with that in mind. Without prejudice to a contention that the application should be refused, there can be an advantage in suggesting alterations or conditions which will make it less damaging. Always emphasise the published current local, regional and national planning policies and those in draft form with which the application does not conform. Attention should also be drawn to the fact that s38 consent will also be necessary if planning permission is given, and this might add to any argument that the application should be called in by the ANA if the council is minded to approve it. The planning authority should be asked to include an ‘informative’ in any planning permission, reminding the applicant that the works will need s38 consent.
8.5.4 If the application is refused and appealed against, or if it is called in, and if there have been objections, there will almost certainly have to be a public inquiry before an inspector acting on behalf of the ANA. There is no advantage for any party to have a separate inquiry for both the planning and s38. These would be largely based on the same evidence, although the conclusions might be different because of the weight given to relevant factors. If it appears that an inquiry is being fixed in relation to one of the procedures without reference to the other, which is known also to be pending, the departments concerned should be approached to combine the proceedings under a single inspector. If that is impossible and the planning inquiry is held first, all the arguments should be submitted there in the hope of a refusal on purely planning grounds. But, if it is not refused, the arguments will have to be repeated for the s38 application. Separate decisions for each procedure will be necessary even if the inquiries are held concurrently.
9.1 As described above, some commons are subject to special legislation which contains its own powers or requirements for allowing buildings, fences or other works. These are, therefore, excepted from s38 by subsection (6). However, they will also be at risk from the compulsory powers dealt with here.
9.2 Acts of Parliament have given many bodies compulsory powers to acquire land, or rights over or under land, for purposes considered to be in the public interest. These include:
a. government departments for major roads, defence requirements, prisons etc,
b. local authorities for most of their services and to facilitate regeneration,
c. new town and urban development corporations, and housing action trusts, especially for major regeneration schemes,
d. transport and waterway undertakings and Environment Agency for railways, light-rail transit, navigation, flood prevention and drainage (many of these will be the subject of orders under the Transport and Works Act 1992),
e. utility (electricity, gas, water and sewerage) and oil companies and their requirements for generation, storage, transmission or distribution,
f. communications organisations and companies with radio and cable networks.
9.3 We describe below the main powers available to the bodies exercising compulsory purchase powers when the facilities they need can only be satisfied by acquiring or appropriating common land or rights over it. The detailed procedures are not described here but the following are the most relevant principles. It is possible for such bodies compulsorily to acquire not only common land, but also (or alternatively) rights over common land. For example, a right may be acquired to take vehicles over a particular route on the common, or to bury infrastructure in the ground subject to a continuing right of access and excavation for maintenance and renewal.
9.4 Compulsory Purchase and Transport and Works Act Orders
9.4.1 These are orders for which a promoter of the development must seek the confirmation of the ANA.
9.4.2 Usually, before the formal procedure on a major scheme begins, there will be public consultations including exhibitions of the proposals.
9.4.3 If, therefore, a proposal affecting a common comes to your attention, it is important to bring it to the notice of as many others as possible, and use the local press and other media to express objections prominently. If there is no equivalent local body already, the formation of a ‘friends of the common’ will be helpful. While the owners and commoners should receive direct notices of the commencement of formal proceedings, the general public will have to rely on public advertisement in the press and not always prominent site notices. These should be looked out for.
9.4.4 Sometimes a proposal requiring compulsory powers will first be the subject of a separate planning application and attention is drawn to to the guidance above. But the planning and compulsory purchase procedures may be carried out concurrently and all the documents connected with the proposal, especially the environmental impact assessment, should be studied carefully on the website or in the department or library where they are publicly available for inspection.
9.4.5 Usually, objections must be lodged within a stipulated period from publication of a notice of a proposed order. This, and later time limits given for submitting drafts or proofs of evidence to a public inquiry, must be rigorously observed because extensions are unlikely to be given.
9.5 Acquisition of Land Act 1981, s19 and s18
9.5.1 Compulsory orders, other than development consent orders, for acquiring the whole or part of a common or other open space (other than for defence purposes) are subject to s19 of the Acquisition of Land Act 1981 (acquisition of new rights over a common or other open space is subject to paragraph 6 of Schedule 3, but operates similarly). This makes the order subject to special parliamentary procedures unless the secretary of state certifies that—
a. there has been or will be given in exchange other land not less in area and equally advantageous to the commoners and the public, which will then form part of the common;
b. the land is being purchased in order to secure its preservation or improve its management; or
c. it does not exceed 250 square yards or is required for the widening or drainage of an existing highway, and the giving in exchange of other land is unnecessary in the interests of the commoners or the public.
9.5.2 The National Trust has its own protection under section 18 of the 1981 Act, and can insist on the special parliamentary procedure if it is resisting the compulsory powers. If, however, the trust decides not to object or withdraws its objection, this does not override the requirement to comply with s19. The Trust has no power to dispose of inalienable land and the purchase must remain under the compulsory powers even though it is not resisted by the Trust.
9.5.3 Regardless of which minister has the duty to consider and confirm the main order, in England the Secretary of State for Environment, Food and Rural Affairs must consider whether to give a certificate under s19 in respect of a common or town or village green.
9.5.4 If, therefore, an order is applied for which affects a common or green, you should not only consider if that is desirable but should also check whether an exchange of land is being offered and how acceptable that might be.
9.5.5 If the secretary of state is unable to certify accordingly, a further period of objection may be advertised and there might even be a further public inquiry unless this is dealt with adequately in the main inquiry. The order is then laid before parliament and objectors are given 21 days to lodge a petition which is considered by a joint committee of both Houses. If no petition is lodged, both the purchase and (if any) the exchange order will be confirmed.
9.6 Nationally Significant Infrastructure Projects and Developments of National Significance
9.6.1 The Planning Act 2008 promoted new classes of development which circumvent the normal planning-permission process and which may affect common land or town or village greens. Amendments to the TCPA, by the Planning (Wales) Act 2015, instituted a similar regime in Wales. These are Nationally Significant Infrastructure Projects (NSIPs) (in England and, for certain purposes, in Wales) and Developments of National Significance (DsNS) (Wales only). PINS examines NSIPs and PEDW examines DsNS. Decisions are taken by the ANA. Where a NSIP is granted, the Secretary of State makes a development consent order, which confers not only planning permission, but also most other consents necessary to the project, including for development on common land or town or village green. An application for a DsNS may include application for other necessary consents, such as under s38, in which case those consents are granted by the Welsh Ministers (even where the consent otherwise would be granted by the local authority).
9.6.2 Where a NSIP affects special category land, the Secretary of State must be satisfied as to the same tests as apply under s19 of the Acquisition of Land Act 1981. But no certificate is given: instead, the decision on the NSIP must record the Secretary of State’s satisfaction. The duty to notify an NSIP application rests with the developer. Notice must be given to local authorities and prescribed persons. On an application being made, anyone may register as an interested party, who will be kept informed.
9.6.3 DsNS may include the compulsory purchase of common land or town or village green, but will be subject to s19 of the 1981 Act in the usual way.
9.6.4 NSIPs and DsNS are examined by an inspector, or a panel of inspectors, who hold hearings. The overall process is complex and demanding, and generally involves voluminous documentation.
9.7 Other compulsory powers of local authorities and public bodies
9.7.1 Local authorities and some other local government bodies have certain rights to deal with commons which do not require a formal order or the consent of the ANA.
9.7.2 A local authority (including a parish or community council) cannot appropriate a common or town or village green exceeding 250 square yards in its ownership to any other purpose, except in accordance with s229 of the Town and Country Planning Act 1990, and that attracts the procedure of s19 of the Acquisition of Land Act 1981. If the area is less than 250 square yards, the council merely has to advertise its intention for two weeks in a local paper and consider the objections received, and there is no right of appeal if the objections are not accepted.
9.7.3 If a local authority wishes to sell the whole or part of its common or green for development, it can do so subject to advertising and considering objections as in the previous paragraph (unless the land is subject to special local legislation or charitable trusts) but it is then necessary to consider the powers of the prospective purchaser, because the land will not lose its status merely by virtue of a disposal.
9.8 Mineral workings
9.8.1 Consent under s38 is required for the lawful taking and working of minerals in or under a common. (This was not the case with s194, from which the winning and working of minerals was exempt.)
9.8.2 Nevertheless, mining and quarrying can only be carried out with planning permission unless the operations are exempt under part 17 of Schedule 2 to the GPDO(E) or parts 19 to 22 of Schedule 2 to the GDPO(W). Some permissions, given many years ago, are still live but subject to newer conditions, especially relating to restoration. If there is any concern about what is being done now or threatened in the future, you should consult the planning department responsible.
9.8.3 No consent is required under s38 for mineral working which relies on a planning permission granted before 1 October 2007 (in England) or 1 April 2012 (in Wales).
10.1 S43 confers a power on the ANA to make an exemption order, in respect of a class of works which are necessary or expedient for any purposes in subsection (4).
These are:
a. use of land by members of the public for the purposes of open-air recreation pursuant to any right of access;
b. the exercise of rights of common;
c. nature conservation;
d. the protection of archaeological remains or features of historic interest;
e. the use of land for sporting or recreational purposes.
An exemption order may not be made to exempt any other class of works: for example, it is not possible to exempt works for the installation of statutory undertakers’ infrastructure.
10.2 An exemption order (The Works on Common Land (Exemptions) (England) Order 2007, SI 2007/2587) has been made allowing exempt works to be carried out in England in four specific circumstances. Further details are available in the common land guidance sheet 1C from PINS (see above). No order has been made in Wales.
10.3 The exemptions are for temporary fencing or permanent obstacles in the following circumstances:
• for a period not exceeding six months, where the area enclosed is the lesser of ten hectares or ten per cent of the register unit, to enclose land for restricting the movement of grazing animals;
• for a period not exceeding three years if the fencing is wholly on moorland, or one year in any other case, it must not exceed one per cent of the register unit or have been enclosed for the previous year, to carry out work which facilitates the growth or restoration of vegetation for the benefit of the common land;
• for a period not exceeding five years where there is a written agreement relating to the management of the land, to enclose it so as to restrict access in the interests of nature conservation, and must not exceed one per cent of the register unit;
• for the installation of a row, not exceeding 200 metres, of regularly-spaced obstacles to prevent vehicular access where the owner reasonably considers that such access would interfere with use of the land by the public, the exercise of rights of common or nature conservation.
10.4 Where works are done relying on the exemption order, notice must be given to PINS, which ought to publish a copy of the notice on gov.uk. The notice must also be displayed on site in a prominent place for the duration of the works (except in relation to a row of obstacles, where the notice must be retained for 28 days).
10.5 The exemptions do not apply to National Trust land, nor to land subject to a scheme of regulation and management under Part I of the Commons Act 1899. The works must not interfere with any legitimate right of access to the land. Where the works are not done by the owner of the land, nor with the owner's consent, reference should be made to the Schedule to the order for the terms on which the exemptions may be applied.
10.6 It is suggested that the exemption of works from the requirement for s38 consent does not permit any person to do anything which (apart from s38) otherwise would be unlawful. For example, the erection of fencing, purportedly under any of the provisions in the 2007 order, which interferes with or excludes grazing animals may well be an unlawful interference with the exercise of rights of common, unless the active commoners consent to or acquiesce in the fencing.
11.1 If any proposed works would not, on balance, improve or maintain the common or would be inconsistent with the normal use of the common it is unlikely that consent under s38 would be given.
11.2 In such cases an application can be made under s16 to have the land released from registration. If the ‘released land’ is more than 200 square metres in area, an application must be made at the same time to register ‘replacement land’ as common land in its place. If the release land is smaller than 200 square metres, a proposal to register replacement land may (but need not) be included.
11.3 Requirements
11.3.1 The requirements are as follows.
(i) Replacement land must not already be registered as common land or as a town or village green.
(ii) If the owner of the release land does not own the replacement land, the owner of the replacement land must join in the application.
11.4 Criteria
11.4.1 The ANA must have regard to:
(i) the interest of persons having rights in relation to, or occupying the release land (in particular those existing rights of common),
(ii) the interests of the neighbourhood,
(iii) the public interest,
(iv) any other matter considered to be relevant.
Where release land is not more than 200 sq metres and there is no provision of exchange land, ANA must have particular regard to the above criteria and the extent to which the absence of such a proposal is prejudicial to the interests above (i, ii, iii).
11.5 Public interest
11.5.1 This is defined as:
(i) nature conservation,
(ii) conservation of the landscape,
(iii) protection of public rights of access,
(iv) protection of archaeological remains and features of historical interest.11.5.2 Consent to an exchange is required by any leaseholder and proprietor of any relevant charge over:
(i) the release land,
(ii) any replacement land.
Our Common Land: the law and history of commons and village
greens by Paul Clayden (Open Spaces Society, 2007 (6th
edition) £20 to non-members, £19 to members, including postage
and packing).
Gadsden and Cousins on Commons and Greens, third edition (Sweet & Maxwell, 2020, £175)
A Common Purpose: a guide to community engagement, revised
2012
Finding Common Ground by Kate Ashbrook and Nicola Hodgson
(Open Spaces Society, 2010)[Italicise whole title]
Open Spaces Society policy on works on common land
1. The Open Spaces Society is in principle against works (including the effect of their anticipated future maintenance) on common land and will look closely at proposals affecting:
a. landscape: any damage to the existing unenclosed and natural character of the common;
b. access: the impact on quiet public access for recreation on foot or horseback and on the exercise of common rights (this is even more important now that the public has the right to walk on all commons in England and Wales, under the Countryside and Rights of Way Act 2000, in addition to existing rights to walk and ride on some commons).
c. disturbance: by possible additional traffic, noise or other nuisances to interfere with or disturb public enjoyment or the grazing of animals. Developments such as wind farms are completely unacceptable.
2. The society is more likely to look favourably on application which:
a. enhance facilities for quiet public enjoyment of the common, provided that they are well-sited and designed and cause minimum detraction of the natural landscape;
b. benefit the public by improving safety or conserving valuable features of the common such as wildlife or archaeology;
c. benefit the commoners by enabling the restoration or conservation of grazing areas without the need for fencing;
d. have resulted from consultation with the local community and with amenity, conservation and recreational organisations;
e. are part of a management plan for the common which was also the result of a full public consultation;
f. are for a desirable purpose appropriate to the urban or rural neighbourhood and cannot be met by alternative means;
g. are for a limited period during restoration or for unavoidable temporary operations, to be followed by removal and proper reinstatement;
h. offers land in exchange which is not less in area and equally advantageous to the public and commoners than that to be taken for the proposed development, provided this does not diminish the value of the revised area of common to the public and commoners.
i. has followed the processes set out in A Common Purpose and Finding Common Ground.
3. The society is likely to oppose any fencing unless there is an overriding need under 2b or 2g above which cannot be met by alternative means and there is adequate access through it.
4. Without prejudice to the above, any gates or stiles included in fencing applications must be to British Standard 5709.
While the Open Spaces Society has made every effort to ensure the information obtained in this factsheet is an accurate summary of the subject as at the date of publication, it 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, September 2015, revised January 2022
Do you want to shape the future of paths and open spaces?
We need your help to keep our technical information, analysis & advice effective and up to date - your support means we can employ expert caseworkers.