Common land, village greens and section 38 consent

Planning permission does not let you fence, build on or surface registered common land. A separate consent is needed under section 38 of the Commons Act 2006, decided by the Planning Inspectorate on behalf of the Secretary of State, and it is refused often enough that any scheme touching common land should establish the position before spending money on drawings.

The same is true in a different way of a town or village green, where Victorian legislation still makes it an offence to interfere with the land, and where no consent route exists at all for most works.

What registration as common land actually means

Common land is land registered as such by the commons registration authority, which is the county or unitary council. Registration records the land itself, any rights of common over it and, where known, the owner.

Registration is not a statement about ownership. Common land is owned by somebody, often a manor, a parish, a trust or a farmer, and the public do not own it. What registration does is attach a set of statutory protections to the land and record the rights other people hold over it.

The practical effect is that the land is stuck. Very little can lawfully happen on it without consent, the land cannot easily be sold free of the registration, and a mortgage lender will notice.

Two categories sit alongside it. Land registered as a town or village green carries protection under section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876, which make it an offence to build on, enclose or damage the green. And unregistered land can still be subject to rights of common in some circumstances.

Searching the commons register before you buy

The register is public and held locally. A search of the commons register is a standard optional enquiry when buying land, and it is the enquiry people skip on a small parcel.

Ask for a copy of the register unit entry, the rights section and the register map, not a yes or no answer. The map is what tells you whether the strip along the roadside, or the paddock behind the barn, is inside the unit. Boundaries drawn in the 1960s often do not match what is on the ground now.

Where the land is unregistered but has the look of a common, check for a manorial title and ask neighbours about grazing. People still exercise rights that nobody has recorded for decades.

A search costs very little against the price of discovering the problem after exchange. Where the seller's solicitor says the registration is historic and lapsed, ask for the entry that shows it.

Works that need section 38 consent

Section 38 prohibits restricted works on registered common land without consent. The restricted works include fencing of any kind, buildings and other structures, and works that prevent or impede access to or over the land. Resurfacing with tarmac, concrete or a similar hard material is caught as well.

Temporary fencing is not exempt, which surprises people running events or grazing trials. Nor is a gate across an existing track if it impedes access.

The application goes to the Planning Inspectorate and is advertised, with representations invited from the commons registration authority, the local authority, any commoners' association, Natural England, the Open Spaces Society and the general public. The test the Inspector applies covers the interests of the commoners, the interests of the neighbourhood, the public interest including nature conservation and public access, and any other relevant matter.

Consents do get granted, usually where the works benefit the common: stock fencing for a conservation grazing scheme, a car park serving access to the common, or a replacement gate. Consents for works that serve development on adjoining land are a harder case.

Deregistration and exchange land

Section 16 of the Commons Act 2006 allows the owner to apply to release land from registration. Where the release land is more than 200 m², replacement land must normally be offered, and it has to be no less advantageous to the commoners, the public and nature conservation than the land being released.

That test is stricter than it sounds. Replacement land in a worse location, with poorer access or less ecological interest, fails even where it is larger. And the replacement land becomes registered common land in turn, which the owner of that land has to accept.

Releases of 200 m² or less can be granted without exchange land, and this is the route used for small encroachments such as a cottage garden that has crept out over the boundary. Straightening a long-standing anomaly is a much easier application than releasing land for development.

The determination is made by the Planning Inspectorate on the same advertised basis as a section 38 application. Allow many months. A Planning Statement for a related planning application should not assume the release will be granted, and a planning permission granted on that assumption is worth little.

Town or village green registration as a defence

Registration of a green under section 15 of the Commons Act 2006 requires 20 years of use as of right by a local community for lawful sports and pastimes. As of right means without force, secrecy or permission, and it is the third of those that landowners get wrong by putting up a sign that says permission is granted, which defeats the claim but also grants a permission.

Since 2013 a set of trigger events, such as the publication of a planning application or the identification of the land in a draft local plan, removes the right to apply to register the land as a green. That change closed the tactic of using a green application to stop a live proposal, and green applications now tend to arrive before an application is published rather than after.

A landowner can also deposit a statement under section 15A, with a map, which stops time running for the purposes of a future claim. Deposits need renewing within the statutory period, and a diary entry costs a great deal less than a public inquiry. The wider exposure is set out in the guidance on town and village green registration risk.

Rights of common and who holds them

Rights of common attach to other land or, less often, to a person. The main types are grazing, estovers (wood), turbary (peat), pannage (pigs) and piscary (fish), and grazing is the one still exercised at scale.

Those rights run with the land they attach to and survive a sale of the common itself. A commoner can object to a section 38 application, and a scheme that damages the grazing will attract objections that carry weight in the determination.

Where a common has an active commoners' association or a statutory commons council, talk to it early. An application supported by the people who use the land is a different proposition from one they hear about through the advertisement.

What this means for a development proposal

Treat common land as a hard constraint at the feasibility stage, in the same way as a statutory designation that needs its own consent alongside planning permission. The pattern is familiar from other regimes, such as consent for works inside an SSSI boundary.

Sequence the applications so that consent under the Commons Act comes first or runs in parallel with a clear fallback. Budget for the advertisement period, the objections and the possibility of a hearing. Where public access is part of the argument, an Open Space Assessment that records existing use of the land gives the case something concrete to stand on.

And if the only route to a viable scheme is exchange land, identify the exchange parcel before you apply, because an application without one rarely survives first contact with the objectors.

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

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