Common land and consent for works

If you want to fence, build on, dig into or resurface land registered as common land, you need consent from the Secretary of State under section 38 of the Commons Act 2006, and you need it whether or not you own the land and whether or not you also need planning permission. Applications in England are determined by the Planning Inspectorate on behalf of the Secretary of State. The consent is separate from planning permission, it is decided on different criteria, and a scheme that has one and not the other cannot lawfully proceed.

What counts as common land

Common land is land registered as such in the commons register held by the commons registration authority, which is the county council or unitary authority for the area. Registration is the test. Land that looks like a common, is called a common locally and has been walked over for generations is not common land unless it appears on the register.

Two related categories cause confusion. Town or village greens are registered separately and carry their own protections. And some land is subject to rights of common without being registered, which affects what you can do with it but is not the same regime.

Start every enquiry with the register. The commons registration authority holds it, and a search will tell you the register unit number, the extent of the land, the rights of common recorded over it and who holds them. Our note on checking a site for constraints before you make an offer puts that search in the right order alongside the rest.

Which works need consent

Section 38 applies to restricted works, which are works that prevent or impede access to or over the land. The category is wider than people expect and includes fences, walls, gates, buildings and other structures, ditches, trenches, embankments and other excavations, and works that result in the resurfacing of the land.

Resurfacing catches out farmers and utilities alike. Laying a hardcore track across a common to reach a field is resurfacing, and so is upgrading a worn path with an engineered surface, even where the intention is to improve access rather than restrict it.

Temporary works are not automatically outside the section. Fencing erected for a grazing trial or for the duration of a construction project still prevents access while it is there, and the application should say how long it will remain and how the land will be reinstated.

Where you are unsure, the cautious course is to apply. Carrying out restricted works without consent leaves them liable to removal.

Who applies and to whom

Anyone may apply. You do not have to own the land, although an applicant who is neither the owner nor a commoner will have to explain their interest and should expect the owner to be consulted.

The application goes to the Planning Inspectorate, which determines it for the Secretary of State. The process involves publicising the proposal, serving notice on the owner, on the commons registration authority and on any commoners' association, and allowing a period for representations. Straightforward unopposed applications are usually dealt with on the papers. Opposed applications can go to a hearing or an inquiry.

Budget for the time rather than the fee. Even an uncontested application takes months, and one attracting objections from commoners or an open spaces body takes considerably longer.

The criteria the decision is made on

Section 39 sets out what the Secretary of State must have regard to, and the list is the useful part of the whole regime because it tells you exactly what your application has to address.

1. The interests of persons having rights in relation to, or occupying, the land, and in particular persons exercising rights of common over it.
2. The interests of the neighbourhood.
3. The public interest, which expressly includes nature conservation, landscape conservation, the protection of public rights of access to any area of land, and the protection of archaeological remains and features of historic interest.
4. Any other matter considered relevant.

Write the application against those headings. An application that deals with the planning merits of the development and says nothing about rights of common or public access has answered the wrong question, and that is the most common reason for a refusal.

Where the works affect archaeological or historic features on the common, an Archaeological Desk-Based Assessment is worth commissioning, because the public interest limb names those features specifically.

Rights of common and the people who hold them

Rights of common are property rights: grazing, estovers, turbary, piscary, pannage and rights of common in the soil. They are recorded in the register against named holders or against dominant land.

Practically, this means your works can interfere with someone else's property right even if the landowner is content. Grazing rights are the ones most often affected, because fencing that excludes stock from part of a common reduces the area over which a right can be exercised. Approach the commoners early, in person, before the formal notice lands. An application supported by the graziers is a different proposition from one they have first heard about through a site notice.

Exchange and release

Where common land has to be taken permanently, section 16 of the Commons Act 2006 allows deregistration, normally in exchange for other land of at least equal benefit being registered in its place. The replacement land has to be suitable for size, location and quality, and the test is applied firmly.

This is the route for a scheme that cannot avoid the common, such as a road improvement or a school extension onto a fragment of registered land. It is slow, it needs land in your control to offer, and it should be started long before the planning application is submitted rather than after permission is granted. Our note on restrictive covenants compared with planning rules covers a similar trap, where a consent is obtained but a private right still blocks the scheme.

Unlawful works and what follows

Works carried out without consent are liable to removal, and the Commons Act 2006 provides enforcement routes through the courts and gives local authorities power to act. There is no equivalent of a lawful development certificate that regularises unauthorised works on a common by the passage of time.

The sequence that works is straightforward: search the register, identify the rights and their holders, talk to the commoners and the owner, then apply for section 38 consent and planning permission in parallel so that neither waits on the other.

This is general guidance, not legal advice, and you should check the position with the commons registration authority, your local planning authority or a qualified professional before relying on it. To see which supporting documents a scheme near registered common land is likely to need, enter the postcode on PlanScope. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.