Common Land Guidance Sheet 9
Updated 14 September 2018
Applies to England and Wales
© Crown copyright 2018
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Works that are exempt from the section 38 controls under section 38(6)
The prohibition on restricted works does not apply to the works described in section 38(6)(a)-(d) of the Act. These are explained, with examples, in the following paragraphs.
(a) Section 38(6)(a) exempts particular works which are carried out under a power conferred by or under an enactment in relation to a particular area of common land.
For example, some local Acts establish a board of conservators for a common and give it power to carry out certain types of improvement works on the land for which it is established.
(b) Section 38(6)(b) exempts works that are carried out under a power conferred by or under an enactment in relation to common land generally. An example is the installation of cattle grids and bypasses on common land under section 82 of the Highways Act 1980 (seeGuidance Sheet 10 on Highways and Cattle Grids).
(c) Section 38(6)(c) exempts work that are directly authorised under a scheme, made under the Commons Act 1899 or Metropolitan Commons Act 1866, except where the scheme or Act requires any person to consent to the works.
An example from the current model form of scheme, prescribed in the Schedule to the Commons (Schemes) Regulations 1982 (SI 1982/209), would be the fencing of any quarry, pit, pond, stream or other like place for the prevention of accidents.
(d) Finally, section 38(6)(d) exempts works for the installation of electronic communication apparatus for the purposes of an electronic communications code network, within the meaning of the Communications Act 2003.
For example, section 38 consent is not needed to erect telephone lines, junction boxes and mobile base stations on common land. Developments of this kind are controlled entirely by the planning system. Except where allowed under ‘permitted development rights’ under the Town and Country Planning (General Permitted Development) Order 1995 (as amended), every installation requires planning permission.