Guidance

Enforcement against unlawful works on common land: common land guidance sheet 12

Updated 26 September 2022

Applies to England and Wales

What controls are there over works on common land?

Section 38 of the Commons Act 2006 (“the 2006 Act”) provides that ‘restricted works’ on registered common land (or certain other land — see section 38(5) of the 2006 Act) require the consent of the Secretary of State if they prevent or impede access to the land, or involve the resurfacing of land with a ‘hard’ surface (such as concrete or tarmacadam).

What power of enforcement is there?

Neither the Planning Inspectorate nor the Commons Registration Authority (usually the county council or unitary authority) has any duty to take enforcement action against unauthorised works on common land. However, where restricted works on common land that require consent are carried out without it, section 41 of the 2006 Act enables any person to make an application to the county court to rectify the situation. The court may make an order either:-

(a) to remove the works and restore the land to the condition it was in before the works were carried out, or

(b) where consent has been given, but the works have not been carried out in accordance with its terms, to specify how the works are to be carried out.

An order is made at the court’s discretion. The court may decide not to grant an order even where the works have been shown to be unlawful. For example, the court may decline to make an order if there has been a long delay in applying to the court after the works were carried out.

When did this power come into effect?

Section 41 was brought into force on 1 October 2007, and action under it can be taken against any restricted works that have been carried out, without consent, since that date.

How do I know what works are allowed on common land?

Guidance Sheet 1a Consent to construct works on common land gives procedural information about section 38 applications to carry out works. Guidance Sheet 4 gives further advice on Car parks, access roads, tracks and footpaths, and Guidance Sheet 5 on Maintaining and extending existing works.

Section 38 applies to all registered common land. You can find out whether land is registered common land by asking to see the register of common land held by your commons registration authority (your county council, metropolitan borough council or unitary authority). Section 38 also applies to certain other land, including a registered town or village green, which is subject to a scheme of regulation under the Metropolitan Commons Act 1866 (in relation to Greater London) or the Commons Act 1899, or which is regulated by an Act made under the Commons Act 1876. Your local commons registration authority should be able to tell you whether there is a relevant scheme or Act in relation to any land in its area. Section 38 also applies to any other land which is in the New Forest and which is subject to rights of common.

Section 38 does not apply to town or village greens generally, other than those specifically referred to above. Different enforcement powers are available to local authorities in relation to unlawful works on town or village greens.

Do the works need consent under section 38?

Anyone proposing to carry out works on a common must decide whether they are “restricted works”. This is not a precise science but the following guidance sheets may help:-

Guidance Sheet 1b Works and processes that do not need Section 38 consent lists those works which, in Defra’s view, are so minor or insignificant as to not require consent under section 38.

Guidance Sheet 1c Works exempt from Section 38 consent process gives advice on an order made under section 43 of the 2006 Act which exempts works from the requirement for section 38 consent.

Guidance Sheet 9, Works that are exempt from the section 38 controls under section 38(6), describes certain works to which section 38 does not apply because, for example, the works are authorised by an Act of Parliament.

Any other restricted works carried out on land to which section 38 applies would need consent.

Does the enforcement power only apply where consent is needed under section 38?

You can also take action against unlawful works on National Trust land, where the works require consent under section 23 of the National Trust Act 1971, and on commons in Greater London, where the works require consent under article 12 of the Greater London Parks and Open Spaces Order 1967. Guidance Sheets 2a, 2b, 2c and 2d give advice on works on National Trust land, Town and Village Greens, schemes of management, and London Boroughs respectively.

MEDIATION

What can I do if I think works have been carried out without consent?

Court action against unauthorised works should be a last resort and can be costly so we strongly advise you to seek a remedy through negotiation and dialogue before going to the courts.

An application for consent for works already carried out (i.e. a retrospective application) may be made and we encourage anyone concerned about unlawful works to ask those responsible for them to make such an application before pursuing court action. This is not a soft option for applicants. There is no guarantee that a retrospective applica­tion will be successful, and if it is not, applicants risk facing court action.

If no retrospective application is made, or if the application is rejected, you should still consider alternative resolution procedures, including mediation through an indepen­dent party, before pursuing court action. Such pre-action procedures are recom­mended by the Ministry of Justice, which has responsibility for court procedures. Failure to seek a resolution through such means may result in costs being awarded against you in court, even if you bring a successful action.

This guidance may help you decide whether to take action through the courts against unlawful works. However, you should consider seeking independent legal advice before taking such action especially if it relates to works carried out before 1 October 2007.

More detailed guidance on taking enforcement action against works on common land can be found on the Open Spaces Society’s website: www.oss.org.uk and How To Take Action: Common Land Encroachment and Works (oss.org.uk).

Open Spaces Society
25a Bell Street
HENLEY-ON-THAMES
Oxfordshire
RG9 2BA

Tel: 01491 573535 Fax: 01491 573051

Email: hq@oss.org.uk

Web: www.oss.org.uk