Common land, greens and land subject to public rights

Common land development is governed by a consent regime that sits entirely outside planning. A grant of planning permission gives you nothing on registered common land: you still need consent under section 38 of the Commons Act 2006 for fencing, buildings, surfacing works and anything else that prevents or impedes access, and that consent is determined by the Planning Inspectorate on behalf of the Secretary of State.

Town or village greens are worse, because registration can happen to land you already own, after you have bought it, on the application of local residents, and it makes the land effectively undevelopable.

The registers and how to search them

Registered common land and registered town or village greens are recorded by the commons registration authority, which is the county or unitary council. The register is a public document and it is searched separately from the Land Registry title.

Three searches belong in every land acquisition on or near open ground:

• The register of common land and town or village greens, which gives the register unit number, the extent, the rights of common recorded over it and the persons entitled.
• The definitive map and statement of public rights of way, held by the highway authority, together with any pending modification orders.
• The register of deposits made by landowners, which records statements that interrupt the accrual of new rights.

A commons search is not part of the standard local authority enquiries package on every transaction, so ask for it specifically. On a site with a village green next door, an old quarry, a strip of manorial waste or a piece of unregistered scrub, it is the search that decides whether the scheme exists.

Works on registered common land

Section 38 catches more than buildings. Fencing, gates, cattle grids, hard surfacing, car parks, ditches and anything else that prevents or impedes access all require consent, whether or not they need planning permission.

The application is advertised, objections are invited, and the Inspectorate may determine it on the papers or hold a hearing or inquiry. The tests look at the interests of those with rights of common, the interests of the neighbourhood, the public interest including nature conservation and the protection of archaeological remains, and any other relevant matter.

Temporary works get no special treatment. Contractor compounds, site hoardings and haul routes across common land all need consent, and the programme has to allow for it. Our note on common land, village greens and section 38 consent works through the application itself.

How a green gets registered

An application under section 15 of the Commons Act 2006 has to show that a significant number of the inhabitants of a locality or a neighbourhood within a locality have indulged in lawful sports and pastimes on the land as of right, for at least twenty years.

Every element of that sentence has been litigated. "As of right" means without force, without secrecy and without permission, so a landowner who has given permission, or who has effectively fenced and signed the land, breaks the claim. "Lawful sports and pastimes" is broad and includes dog walking and children playing. The number of users must be enough to signal general use by the community rather than a particular count.

The evidence is witness statements, usually dozens of them, supported by photographs and questionnaires. It is a slow, evidence-heavy process decided by the registration authority, often after an inquiry before an independent inspector.

What registration does to a site

It stops development. Interference with a registered green attracts criminal liability under Victorian statutes that remain in force, and the practical position is that nothing can be built and the land cannot be enclosed.

Registration also survives a change of ownership and cannot be undone by planning permission. A developer holding consent for fifty houses on land subsequently registered as a green holds a permission that cannot lawfully be implemented.

That asymmetry is why the risk belongs in the acquisition appraisal rather than in the planning strategy, alongside the other constraints that operate independently of the planning system, such as hazardous substances consultation zones.

Deregistration and exchange land

Section 16 allows a landowner to apply to release land from registration. For anything but the smallest parcel, that means providing replacement land.

The exchange land must be no less in area than the land released and must be at least as advantageous to the public and to any persons with rights of common. In practice the Inspectorate looks at location, accessibility, quality, topography and whether the exchange leaves the neighbourhood no worse off in practice. Offering a steep, wet field half a mile away in place of a level green in the middle of a village will fail.

Where the release land is very small, below the threshold set in the section, replacement land may not be required at all, which is the route used for minor encroachments such as a visibility splay or a service trench.

Budget properly. Acquiring exchange land, advertising the application, dealing with objections and attending an inquiry is a twelve to eighteen month exercise on a contested case, running in parallel with the planning application rather than after it.

Heading off a green application

Two statutory tools protect a landowner, and both work only if used before an application is made.

The first is a deposit of a statement and map with the commons registration authority, which brings to an end any period of use as of right and starts the clock again. It is inexpensive, it lasts for a defined period and it needs renewing.

The second is the set of trigger events introduced to prevent green applications being used tactically against development. Where a planning application has been published, or the land has been identified for potential development in a development plan document, the right to apply for registration is excluded until a corresponding terminating event occurs. The list is specific, so check whether your circumstance is on it rather than assuming.

Physical measures matter too. Permissive signage, occasional closure, and a record of granting permission all defeat the "as of right" element, and they are cheaper than an inquiry.

Planning permission is not the answer

The consent regimes are parallel and neither substitutes for the other. A scheme on or adjoining common land needs planning permission, section 38 consent where works affect the common, section 16 release where the land is to be built on, and orders to stop up or divert any public rights of way crossing the site.

Rights of way are handled under the planning legislation where the diversion is needed to allow development to proceed, and under the highways legislation otherwise. Either route takes months and can attract objections that lead to a public inquiry, so start it at the same time as the planning application.

Commons and greens sit alongside other designations with their own statutory duties, and the way those duties bite on a decision maker is set out in National Landscapes and the duty on decision makers. The difference is that a common is a property interest as well as a designation.

Due diligence before you buy

1. Order a commons register search and a definitive map search on every site with open ground, informal paths or unregistered land within or adjoining it.
2. Check whether any application for registration is pending, and whether a landowner statement has been deposited and when it expires.
3. Walk the site and photograph the access points, gates, signs and worn desire lines.
4. Ask the seller directly about local use, and get the answer in writing.
5. Where a risk exists, deposit a statement immediately on acquisition rather than after the first objection.

The cost of all of that is a few hundred pounds and an afternoon. The cost of finding out later is the site. Browse the 66 report types to see which supporting documents your application will need once the land position is clear.

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