Common land and town or village greens on a site

Registered common land and registered town or village greens are recorded in registers held by commons registration authorities, and land carrying either status is very difficult to develop. Works on registered common land need consent from the Secretary of State under section 38 of the Commons Act 2006, separately from planning permission, and a green cannot be built on at all while it remains registered.

For a developer the risk splits in two. Land already on the register, which a search will find. And land that is not registered yet, where somebody may apply to register it as a green because local people have used it for years.

How land becomes registered common or a green

Common land is largely historic. The registers were compiled under the Commons Registration Act 1965 and are now maintained under the Commons Act 2006, and the entries record the land, the rights of common over it and the identity of those entitled to exercise them. New registrations of common land are rare.

Town or village greens are different, because the route to registration is still open. Section 15 of the Commons Act 2006 allows an application 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 the land for a period of at least 20 years.

Each element of that test does work.

Lawful sports and pastimes covers informal recreation. Dog walking, children playing, kite flying, picnicking. It does not require organised sport.

As of right means without force, without secrecy and without permission. A landowner who has put up a sign granting permission, or who has closed the land one day a year, may have defeated the claim. Permission given expressly is fatal to it.

The number test asks whether enough people used the land to signal to the landowner that it was in general use by the local community, rather than setting a proportion of the population.

The locality or neighbourhood has to be identifiable, and arguments about whether a claimed neighbourhood is cohesive enough to qualify have decided plenty of applications.

Checking the commons register

The commons registration authority is the county council or unitary authority, and the registers are public. A search of the register for common land and greens should be part of every site acquisition, alongside the local land charges search.

What to ask for: whether any part of the site is registered as common land or as a town or village green, whether any rights of common are registered over it, and whether any application for registration is pending. That last question matters, because a pending application is not an entry on the register and a standard search may not reveal it.

Also check for land adjoining the site. Rights of access over adjoining common land under section 193 of the Law of Property Act 1925, and the effect of section 194 of that Act on works, can affect access arrangements even where your own land is clean.

Physical evidence on the ground is worth as much as the paper. Worn paths across the site, a goal post, a bench, a bin emptied by the council, a noticeboard, a Christmas tree in December. Any of those suggests use that could support an application, and all of them should be photographed and dated at acquisition.

Works on common land and section 38 consent

Section 38 restricts works on registered common land. The restricted works include fencing, buildings and other structures, digging ditches or trenches, and works that prevent or impede access, including resurfacing where the surface is changed to a different material.

Consent is granted by the Secretary of State, with applications handled through the Planning Inspectorate, and the process runs separately from planning permission. Objections are publicised, and a hearing or inquiry can follow. The tests consider the interests of those with rights of common, the neighbourhood, public access, nature conservation and the protection of archaeological remains and features of historic interest.

The practical consequence is programme. Section 38 consent takes months and can be refused after a planning permission has been granted, so the two applications should be planned together and the consent risk priced at acquisition rather than discovered at the pre-commencement stage. This is the same discipline that applies to other statutory constraints that sit alongside planning, in the way that safeguarded wharves and waterway constraints run on their own track.

Trigger events that block new registrations

The Growth and Infrastructure Act 2013 inserted section 15C and Schedule 1A into the Commons Act 2006, creating a system of trigger events and terminating events.

Where a trigger event has occurred in relation to land, the right to apply to register it as a town or village green is excluded. The trigger events are set out in Schedule 1A and relate to the land entering the planning system in defined ways, for example where an application for planning permission is publicised, or where the land is identified for potential development in a draft or adopted development plan document. A corresponding terminating event, such as the withdrawal or refusal of that application, restores the right to apply.

Two practical points follow.

The protection is not retrospective in effect on an application already made, so an application submitted before the trigger event continues to be determined. Speed matters on both sides.

And the protection lasts only while the trigger remains unterminated. A permission that expires, or an allocation dropped from a plan, can reopen the door, which is a reason to keep a permission alive rather than let it lapse on a sensitive site.

Defending against a registration application

Where an application is made, the registration authority publicises it and invites objections, and contested applications are commonly referred to an independent inspector who holds a non-statutory public inquiry and reports to the authority.

The evidence that decides these inquiries is about use rather than about planning merits. Landowner evidence typically covers the history of ownership and management, any permissions given, signage, fencing and closures, agricultural or other operations on the land, and witness accounts from those who worked it.

Do not rely on the absence of a formal right of way. The green test is about recreational use by inhabitants, not about highway rights, and land crossed by a public footpath can still be registered if the wider use goes beyond passage along the line of the path.

Take advice early. These inquiries are evidence-heavy, the burden lies on the applicant but the practical fight is over witness recollection across two decades, and the outcome is effectively final for development purposes. The registration decision does not depend on whether the land is allocated, and the interaction with designated constraints such as a National Landscape setting is coincidental rather than connected.

Deregistration and exchange land

Section 16 of the Commons Act 2006 allows an owner to apply for land to be released from registration, and where the land exceeds a modest area the application normally has to offer replacement land to be registered in its place.

The replacement land is expected to be no less advantageous to the persons entitled to rights of common, to the public and to the neighbourhood, judged on access, recreation and nature conservation. Offering a fenced strip beside a bypass in exchange for an accessible open space in a village will not succeed.

Deregistration is a genuine route on the right site, particularly where a small area of registered land sits awkwardly within a larger holding and better replacement land is available nearby. It is slow, and it needs to start early.

Effects on layout and open space provision

Where registered land or a green stays within the red line, treat it as undevelopable and design around it. It can still count towards the amenity of the scheme, and it may reduce the open space the scheme itself has to provide, though authorities usually want new provision rather than reliance on existing public land.

Do not assume a green can be enhanced with play equipment, paths or lighting. Those are works on the land and are subject to the restrictions on interfering with a green, so the improvement offered as a public benefit may itself need consent. Check that before it appears in a section 106 heads of terms, along with the other supporting documents scoped through the 66 report types by category index.

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 your postcode on PlanScope to see which documents your site is likely to need.