Common land guidance sheet 5
Updated 14 September 2018
Applies to England and Wales
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This publication is available at https://www.gov.uk/government/publications/common-land-guidance-sheet-5-maintaining-and-extending-existing-works/common-land-guidance-sheet-5
Maintaining and Extending Existing Works
Works may have been lawfully carried out if this was done:
- with consent under section 38, or section 194 of the Law of Property Act 1925;
- under a statutory provision (see Guidance Sheet 9); or
- because consent is not needed.
No consent is needed to maintain existing lawful works, provided the maintenance works are within the terms of any original consent. Consent is needed to extend any lawful works, where that extension prevents or impedes access.
Where works have been carried out without the necessary consent under section 38 you should seek consent for the works and for any new works proposed.
It will not be possible to apply after 1st October 2007 for retrospective consent for works constructed before that date. Such works do not require section 38 consent, because section 38 was not in force when they were carried out and the transitional provisions in the commencement order only allow existing section 194 consent applications to continue; they do not allow new section 194 applications to be made.
Generally speaking, you should make a section 38 application where the works are for the management, improvement or protection of the common, or are otherwise consistent with the traditional uses of the common. But you should apply instead under section 16, and provide exchange land, where the works are not consistent with those purposes, e.g. where they are for purely private benefit (see Guidance Sheet 1a ( for further guidance).
No consent is needed to maintain or extend works which are located on land adjoining the common if that adjoining land is not registered common land; section 38 only applies to works carried out on registered common land.