Common Land Guidance Sheet 10
Updated 27 September 2023
Applies to England and Wales
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Highways forming part of registered common land
Consent under section 38 of the Commons Act 2006 is generally needed for works on a highway (other than in connection with a cattle grid and associated bypass) where that highway is registered as common land.
Cattle grids on Highways forming part of registered common land
The construction of a cattle grid and associated bypass (and any short stretches of fencing that are an integral part of the cattle grid) on a highway needs the consent of the Secretary of State for Transport under section 82(4) and Schedule 10 of the Highways Act 1980. There is no need to seek a separate consent under section 38 of the Commons Act.
Cattle grids on privately owned and maintained roads forming part of registered common land
The Highways Act does not apply to privately owned and maintained roads and consent under section 38 of the Commons Act is therefore needed to construct a cattle grid on such roads.
Cattle grids on a footpath or bridleway forming part of registered common land
Obstructing a footpath or bridleway (e.g. by constructing a cattle grid) is unlawful without the necessary consent.
Consent can be sought under section 38 of the Commons Act to construct a cattle grid beside a footpath or bridleway and erect a by-pass gate on the footpath or bridleway. Consent cannot be sought under section 38 to construct a cattle grid on a footpath or bridleway.
Highways authorities may authorise works preventing the ingress or egress of animals under section 147 of the Highways Act 1980. Such works could include a cattle grid on a footpath or bridleway but only in combination with a gate or stile to facilitate continuing use of the public right of way.