Section 38 consent for works on registered common land

Works on common land consent is separate from planning permission, decided by a different body, against different tests. Section 38 of the Commons Act 2006 makes it unlawful to carry out restricted works on registered common land in England without the consent of the Secretary of State, and applications are determined by the Planning Inspectorate. A planning permission does not authorise the works, permitted development rights do not help, and the fact that you own the land makes no difference at all.

Owners of commons discover this when they put up a stock fence. The fence is restricted works because it impedes access, and the remedy available to commoners or the local authority is a court order to remove it.

What counts as restricted works

Section 38 catches two categories. The first is any works which have the effect of preventing or impeding access to or over the land: fences, walls, gates, hedges planted as a barrier, buildings, structures, ditches, embankments and similar. The second is resurfacing of land with tarmac, concrete or other materials, which brings car parks, hardstandings and surfaced tracks within the regime.

Some things people assume are caught are not, and some they assume are free are caught. A cattle grid and its associated fencing needs consent. Replacing an existing fence on the same line generally needs consent, because the test is the effect of the works rather than whether the situation is being made worse. Routine repair of an existing lawful structure sits differently, and a small number of exceptions exist, including works authorised under other legislation, so read section 38 itself for the case in front of you.

The regime applies to land registered as common land, and comparable controls reach town and village greens and certain urban commons. Where land is not registered but was subject to rights of common historically, section 194 of the Law of Property Act 1925 can still require ministerial consent, which is a trap on older estates where the commons registers were never tidied up.

Who decides, and against what tests

The Secretary of State decides, in practice through the Planning Inspectorate's common land casework team. The published consents policy sets out what the decision-maker has regard to:

• The interests of the persons having rights in relation to the land, meaning the commoners.
• The interests of the neighbourhood.
• The public interest, which expressly includes nature conservation, conservation of the landscape, protection of public rights of access and the protection of archaeological remains and features of historic interest.
• Any other matter considered relevant.

Notice what is absent. There is no presumption in favour of development, no tilted balance, no housing land supply argument. The starting point is that commons are open land held for the benefit of others, and works that reduce that benefit need positive justification.

The justification that succeeds most often is management: fencing needed to reintroduce grazing on a site that is scrubbing over, where grazing delivers a conservation benefit that could not otherwise be achieved. The justification that fails most often is private convenience, such as a fence to keep the public away from a house built on the edge of the common.

How it interacts with planning permission

Both consents are needed and neither is a substitute for the other. The practical question is sequencing.

The consents policy expects applicants to have dealt with the planning position, so where permission is needed, apply for it first or run the two in parallel and tell each decision-maker about the other. Where the works are permitted development, say so in the section 38 application and explain why no planning application is being made.

Do not assume a planning permission carries weight in the section 38 decision beyond showing that the works are acceptable in land use terms. The Inspectorate applies its own tests, and consent has been refused for schemes that hold planning permission.

Evidence of public benefit and access

Applications are decided on paper in most cases, so the application has to make the case without a site visit doing it for you.

1. A plan showing the registered common, the register unit number, the works, and the extent of land enclosed or surfaced.
2. A statement of the purpose of the works, with the alternatives considered and why they were rejected.
3. Evidence of the effect on access: how people currently use the land, what routes exist, and what gates, stiles or gaps are provided.
4. Evidence of the effect on rights of common: who holds rights, what they are, and whether the rights holders support the application.
5. Nature conservation and landscape evidence where the works affect a designated site or a valued landscape. A Landscape and Visual Impact Assessment is proportionate where the works are prominent.
6. A proposed time limit and review arrangement where the works are for management purposes.

Access provision is what turns a refusal into a consent. A grazing fence with generous pedestrian gates at every desire line, kept unlocked, reads very differently from the same fence with one gate at the corner. Offer more access than you think you need to.

Where the common is also recreational open space serving a settlement, expect that role to be examined, which is the territory an Open Space Assessment covers.

Objections and the inquiry route

Applications are advertised by site notice and in a local newspaper, and representations run for a stated period. Statutory and non-statutory bodies with an interest in commons routinely comment, as do commoners' associations and local authorities.

Where objections are made, the Inspectorate decides the procedure. Most cases proceed by written representations. Contested cases involving substantial enclosure, or strong local feeling, can go to a hearing or a public inquiry, which adds months and cost. The determining factor is usually whether the objections raise matters that need testing rather than the volume of them.

Two practical points. Engage the commoners before you apply, because their support or neutrality changes the tenor of the case. And answer the objections in writing rather than restating your original case, because the Inspectorate is looking for a response to the specific harm alleged.

Deregistration and exchange land

Where the works amount to permanent loss of common land, section 38 is the wrong tool. Section 16 of the Commons Act 2006 allows an owner to apply to deregister land, and for areas above a small threshold the application must offer replacement land in exchange. The replacement land becomes common land, and the tests look at whether the exchange is in the interests of the commoners, the neighbourhood and the public.

Exchange applications are serious pieces of work. Expect to demonstrate that the replacement land is at least as good in size, quality, accessibility and location, and expect scrutiny of how the replacement will be managed.

Sequencing consents on a project

Common land sits alongside other constraints that behave in their own way, and a constraints audit at the outset is worth the afternoon it takes. Our note on constraints that lapse or are revoked covers which layers to recheck before you submit anything.

For a project touching a common, the order that works starts with the registration position, taken from the commons register held by the commons registration authority. Identify the rights holders next. Then scope the works so the access effect is as small as it can be, take pre-application advice on the planning side, and prepare the section 38 application with the access mitigation designed in. A Planning Statement can carry the planning case while the section 38 statement carries the commons case, and the two should not contradict each other.

One honest uncertainty: timescales for section 38 decisions vary widely with the level of objection, and there is no statutory determination period to hold anyone to. Build a generous allowance into the programme, and never let a contractor start on the strength of a planning permission alone.

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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. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.