Common land and village greens as development constraints

Registered common land and registered town or village greens are a hard constraint rather than a policy consideration. Planning permission does not authorise works on either, and on a green the practical answer is usually that built development cannot happen at all. For anyone assessing a site, common land development constraint checks belong at the title and registers stage, alongside the Land Registry search, not in the planning appraisal three months later.

The two designations behave differently. Common land is subject to a separate works consent regime that can be applied for and sometimes granted. A registered green carries Victorian statutory protection that makes interference with it an offence, with no consent route to interfere.

How the registers work and who holds them

Registration sits with the commons registration authority, which is the county council or unitary authority for the area. The registers were created under the Commons Registration Act 1965 and are maintained under Part 1 of the Commons Act 2006, which also introduced a scheme of continuous review in pioneer areas.

There are two registers: common land, and town or village greens. Each entry records the land, the rights of common over it and the ownership where known. Some commons have no recorded owner, which is a problem in its own right when a developer needs a party to deal with.

The registers are not online in a single national search. Mapping on the Defra MAGIC service shows a registered common land layer that is good for a first pass, but it is indicative. The authoritative answer comes from an official search of the register held by the registration authority, and that search is the document to put in the due diligence pack. Where an interest in a wider green infrastructure picture matters, an Open Space Assessment can sit alongside it, but it does not replace the register search.

The broader treatment of these designations is covered in the note on common land, town and village greens and development. What follows concentrates on the consent mechanics and the registration process.

Section 38 of the Commons Act 2006

Section 38 prohibits restricted works on registered common land without consent. Restricted works are those that prevent or impede access, together with resurfacing with tarmac, concrete or other hard material. Fences, walls, buildings, structures, ditches, embankments and the erection of permanent barriers all fall within it.

Applications are made to the Secretary of State and determined by the Planning Inspectorate. The test is whether the works are in the interests of those with rights over the land, the neighbourhood, public access and the protection of archaeological remains and features of historic interest, alongside the public interest in nature conservation and the landscape.

Three points catch applicants out.

The consent is separate from and additional to planning permission, and the two can be obtained in either order. Running them in parallel is normal, though a section 38 refusal makes the permission worthless.

Temporary works count. Fencing erected for a construction compound on common land needs consent, which is why a site access across a common has to be designed before the programme is fixed.

Works that do not prevent or impede access and do not involve hard surfacing fall outside section 38. Mowing, scrub clearance, repairing an existing surface in like materials and installing an underground service with full reinstatement are usually outside the regime, although an easement from the owner is still required and rights of common still have to be respected.

Village green registration as a defence

Section 15 of the Commons Act 2006 allows land to be registered as a town or village green where a significant number of the inhabitants of a locality, or of a neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on it for at least 20 years.

That is a low threshold in practice. Dog walking, informal football and children playing all count, and "as of right" means without force, secrecy or permission. A landowner who tolerated public use for two decades without a sign, a licence or an interruption has usually created the conditions for an application.

Once registered, the position hardens. Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 make it an offence to injure a green or to interfere with its use and enjoyment, and the courts have treated those provisions as preventing built development. There is no equivalent of section 38 consent for a green.

The Growth and Infrastructure Act 2013 inserted section 15C and Schedule 1A, which suspend the right to apply for registration once a trigger event occurs. Publication of a planning application for the land, and allocation of the land for development in a development plan document, are the common triggers. The right revives on a terminating event, such as withdrawal or refusal of the application. The practical consequence for a promoter is that submitting an application early can close off a registration application that would otherwise have blocked the site.

Deregistration and exchange land

Section 16 of the Commons Act 2006 lets the owner apply to release land from registration. Where the release area exceeds 200 m², the applicant must offer replacement land, and the Secretary of State will expect it to be no less advantageous to the public, to those with rights of common and to nature conservation.

In practice that means land of comparable size, quality and accessibility, in the same locality, with the same rights registered over it. Remote or poor-quality exchange land does not succeed. The same logic that governs alternative natural green space in the note on recreational disturbance zones and alternative green space applies here: substitution has to be credible to the people who currently use the land.

Timescales are long. A contested section 16 application can involve a public inquiry, so programme it as a strategic consent rather than a condition to be discharged.

Evidence a landowner should assemble

For any site where common land or green status is in question, the pack needs:

1. An official search of both registers from the commons registration authority, with the register entry and plan.
2. Title documents showing ownership and any rights of common recorded against the land.
3. A written history of use, including whether access has been by permission, under licence, or on a permissive path agreement.
4. Photographic and documentary evidence of any signage, fencing, gating or interruption of use, with dates.
5. For sites where registration is a live risk, a note of any trigger event under Schedule 1A and its date.

Where land has been used informally for years and the owner wants to prevent a green application, the lawful options are to grant permission expressly by notice or licence, which breaks the "as of right" element, or to deposit a statement under section 15A of the Commons Act 2006 declaring that no right to use the land for lawful sports and pastimes is intended to be granted.

Planning permission against commons consent

Keep the two consents conceptually apart in every document you submit. A planning statement that treats section 38 as a formality invites an objection from the commons registration authority and from local commoners, who are often organised and well informed.

The honest position in a planning submission is that the works require consent under the Commons Act 2006, that the application has been made or will be made, and that the planning permission will not be implemented unless and until consent is granted. Offering a condition to that effect removes an easy reason for refusal.

One uncertainty worth stating: the scope of "prevent or impede access" has been tested on specific facts rather than settled in the abstract, and marginal works such as low kerbs, cattle grids and gates with unlocked access have gone both ways. Where the works are marginal, the quickest route is to ask the Planning Inspectorate's commons casework team whether an application is needed before assuming it is not.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. Enter a postcode on PlanScope to see which of the report types a constrained rural site is likely to need, and browse the full set at all 66 report types.