Form

Notes for making an application for consent to construct works on common land Commons Act 2006

Updated 26 March 2024

Applies to England and Wales

Commons Act 2006: Section 38

National Trust Act 1971: Section 23

Greater London Parks and Open Spaces Order 1967: Article 12

Introduction

These notes are to help you if you plan to carry out works on common land. They should be read in conjunction with the application form (CLP 2), and the relevant Guidance Sheets. These include:

• For applications under section 38 of the Commons Act 2006, Guidance Sheets 1a, 1b and 1c
• For applications under section 23 of the National Trust Act 1971 (PDF, 173 KB), Guidance Sheet 2a
• For applications under article 12 of the Greater London Parks and Open Spaces Order 1967, Guidance Sheet 1a and Guidance Sheet 2d

Applications under Section 38 of the Commons Act 2006

An application under Section 38 can only be made where the land is registered common land or if it is land which is not registered as a common (e.g. a registered town or village green) but is regulated by a provisional order of regulation confirmed by an Act made under the Commons Act 1876, a scheme of management under the Metropolitan Commons Act 1866 or the Commons Act 1899, or is land in the New Forest which is subject to rights of common.

Environmental Impact Assessment

Works on common land (e.g. to erect fencing) have to be assessed against the thresholds set out in accordance with regulation 5 of, and Schedule 1 to, the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006 as amended by the Environmental Impact Assessment (Agriculture) (England) (No. 2) (Amendment)Regulations 2017. A person who has made an application for consent for works on common land under section 38 of the Commons Act 2006 must also:

a. where the works are for a project, which is equal to or exceeds the thresholds, seek a screening decision from Natural England confirming the project is not likely to have a significant effect on the environment; and

b. where the project has been identified following screening as being significant, seek Environmental Impact Assessment (EIA) consent from Natural England.

You are advised to seek from Natural England an EIA screening decision and EIA consent (where needed) before applying for consent under section 38 of the Commons Act 2006 to carry out the works.

However, if you decide to seek an EIA screening decision and EIA consent (if needed) before or at the same time as applying for consent under section 38 of the Commons Act 2006 we will determine the application for consent under section 38 of the Commons Act 2006 regardless of whether an EIA screening decision and EIA consent (where needed) has been sought or granted.

You should not start any of the works for which you have sought consent under section 38 of the Commons Act 2006 before you have received either the EIA screening decision or EIA consent (where needed) from Natural England.

For further information about the EIA process please see the guidance on GOV.UK.

Schemes of Management (A common may be regulated by a scheme of management made under the Commons Act 1899 (a “scheme common”) or by any local legislation. References in these Notes to “schemes of management”, “scheme(s)” and ”scheme common(s)” include commons regulated by any local legislation.)

Some works are permitted by schemes of management or local Acts without the need to obtain our consent. The casework database on the Defra website Common land: management, protection and registering to use - Detailed guidance - GOV.UK may show whether there is a scheme of management covering the common. Information about schemes may also be available from the commons registration authority or from the parish council. If there is a scheme of management read its terms carefully. You should satisfy yourself that, under the terms of the scheme, consent under section 38 is needed for the proposed works. If you are in any doubt you should seek your own legal advice. See Guidance Sheet 2c for further information on Schemes of Management.

Commons in London Boroughs

Commons that are managed by London borough councils have their own special arrangements regarding carrying out works. See Guidance Sheet 2d for further information on London Borough commons.

SECTION A – The common land

The Commons Registration Authority

Before applying check with the commons registration authority (usually the county council or unitary authority) that the land is registered as a common under the Commons Registration Act 1965 or the Commons Act 2006. If the land is registered as common land (or is one of the few village greens that is subject to section 38 – see Guidance Sheet 2b) you should send us copies of the commons register (held by the commons registration authority) with your application. This will include details of the land, rights and ownership, and the register map.

SECTION C – Area of common and common rights

Rights of Common, Leaseholders and Charges

You should read the rights section of the commons register before answering Section C. Registered common rights can include: pasture (grazing), turbary (digging peat), estovers (e.g. bracken for animal bedding), piscary (fishing), pannage (pigs eating acorns), or common in the soil (minerals).

The commons register will not show which commoners are active but your informal consultations should reveal them.

“Relevant leaseholder” means a leaseholder under a lease for a term of more than seven years from the date on which the lease was granted.

“Relevant charge” means:

(a) in relation to land which is registered in the register of title, a registered charge within the meaning of the Land Registration Act 2002, or

(b) in relation to land which is not so registered, (i) a charge registered under the Land Charges Act 1972, or (ii) a legal mortgage, within the meaning of the Law of Property Act 1925, which is not registered under the Land Charges Act 1972.

SECTION D – The proposal

Description of the works

Describe the proposal fully and include details of any materials to be used. State all areas accurately.

For fencing proposals answer the additional questions in Section D2 fully.

Temporary works

For temporary works or fencing, clearly state the period of time for which consent is sought. If you wish the works to remain after the time limit has expired a further section 38 consent will normally be needed which should be made before the time limit has expired.

Works already carried out

Whenever possible you should obtain consent before carrying out restricted works. Nevertheless, if you have already begun or completed the works a retrospective application may be made but not if the works were carried out before 1 October 2007. Retrospective applications are treated the same as prospective applications and determined on their individual merits. Make clear when answering question 11:-

(i) which works have already been carried out and why; and

(ii) which works have not yet been carried out.

If consent is given it will take effect from the time of commencement of the works. If consent is refused the works will be unauthorised and enforcement action may be taken against them (see Guidance sheet 12).

Why the works are needed

It is important to give a full response here in support of your proposal. You should address questions such as:

• How will the works help to protect, maintain or improve the common, having regard to all the interests in it?
• What options have you considered for achieving your aims, and why did you decide on this one?
• Were any options involving less (or no) works on common land considered? Why were these rejected?

The criteria in Section 39 of the Commons Act 2006 are:

(a) the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it);

(b) the interests of the neighbourhood;

(c) the public interest, which includes the public interest in:

• nature conservation
• the conservation of the landscape
• the protection of public rights of access to any area of land, and
• the protection of archaeological remains and features of historic interest;

(d) any other matter considered relevant.

See Guidance Sheet 1a and Defra’s Carrying out works on common land. See also Guidance Sheet 2a if your application is made under section 23, (National Trust commons) or Guidance Sheet 2d if it is under article 12 (London Borough commons).

SECTION E – Planning permission

Planning Permission

This is only relevant where planning permission is also needed for your proposal. We can only give consent for the works described in your application. If, having made your application, you subsequently change it to accord with any conditions attached to a planning permission you may have to re-advertise the application or even withdraw it and make a fresh one. Therefore, to avoid potentially abortive work, you may prefer to await the planning permission decision before seeking section 38 consent.

SECTION F - Designations

SSSIs and other designations

Natural England is the Government’s adviser for the natural environment. Information on SSSIs and other designations can be found on its web site Natural England - GOV.UK. See Guidance Sheet 8 for more information on SSSIs and other designations.

If consent is given it will take effect from the time of commencement of the works. If consent is refused the works will be unauthorised and enforcement action may be taken against them (see Guidance sheet 12).

Scheduled Ancient Monuments

Information on scheduled ancient monuments can be found on the Government web site.

SECTION G – Existing works and adjacent common land

Context for the proposed works

This section asks for more information about the context of the proposed works in relation to the surrounding common land. In deciding your application we will take account of any existing works on the common. We will consider the potential impact of the proposal on the common itself and on all common land in the vicinity.

If there are existing buildings, roads, fences or other constructions on the land, please show where they are on your plan.

SECTION J – Advertisement and consultation

The notice

Please advertise your proposal at the same time as you make the application, and allow a minimum of 28 days for people to write to us with their views. Please ensure you use the form of notice at Annex A (an example notice is at Annex B), and include all the works for which you are seeking consent. Omissions or an incorrectly worded notice may result in you having to re-advertise the application.

In completing the notice:

(a) your description should be detailed enough for interested parties to know whether they wish to comment on the proposal;

(b) the address for inspecting the application and map should be easy for people who live near the common to get to e.g. public libraries, council offices, or post offices. A private address is not normally appropriate;

(c) the closing date for people to write to us must be no less than 28 days from when the notice last appeared. Make sure that any interested parties you write to receive the notice at least 28 days before the closing date.

While we can offer advice on drafting the advertisement you are responsible for what it says.

Advertising requirements

The notice must be:

(a) advertised in at least one main local newspaper;

(b) sent to all the organisations listed in Section J, using the letter at Annex C, C1 or C2;

(c) posted at the main points of entry to the common (or, if there are no such places, in a conspicuous place at the site);

(d) placed at the inspection point with the application and map.

To comply with (b) above, you must write to all the organisations listed in Section J, using the letter at Annex C if your application is under section 38 or section 23 (or Annex C1 or C2 if your application is under the 1967 Act). You may also wish to send the notice to other interested parties (for example, Wildlife Trust, Local Access Forum, Council for Protection of Rural England, Ramblers’ Association, local amenity society) - see Guidance Sheet 1a.

You must consult all active commoners. You must write to the occupier of any property shown on the commons register as having rights of common attached to it and any other person whom you believe is entitled to exercise rights if those rights are being exercised or are likely to be affected by the application.

You should include with your application a completed letter (see Annex D) confirming that you have met the advertising requirements, listing the interested parties you have notified. We will not be able to process your application unless we have this confirmation.

Representations from interested parties

If there are representations on the application we will copy them to you and ask for your comments within a specified timescale. We may then conclude that we can decide the application based solely on written evidence, or that a public inquiry, hearing or site visit is needed. If there are no (or few) objections it is more likely that a decision will be made solely on the basis of the written evidence. We will keep you informed about the progress of your application. (See Guidance Sheet 1a for more detailed guidance).

Representations sent to the Planning Inspectorate cannot be treated as confidential. They will be copied to the applicant and possibly to other interested parties. To find out more about how the Planning Inspectorate uses and manages personal data, please go to the privacy notice.

The Open Spaces Society campaigns to protect common land, open spaces and public rights of way in England and Wales. Its web site is www.oss.org.uk

SECTION K - Maps

Provide two copies of an up-to-date map which clearly shows the works you propose to carry out and their location. This is in addition to a copy of the register map which you must also send us. With regard to the application map, you must ensure that you:

• use an Ordnance Survey Sheet of the latest Edition, of sufficient scale to show clearly the location of the works in relation to other features (1:10,000 may be appropriate for larger commons);
• identify clearly the scale of the map so we can check the measurements of the proposed works;
• highlight accurately the boundary of the common land in green and the site of the proposed works in red. (Details of the boundary are on the register map);
• show the information on just one map if possible but use additional maps if necessary;
• clearly show at least two road names or other features, so the site can be easily identified, and give at least one full grid reference;
• include a plan or drawing of the proposed works if it helps to clarify your proposal;
• provide a copy of each map and plan.

List of Annexes

• Annex A Form of Notice for advertising your proposals
• Annex B Example Form of Notice
• Annex C Form of Letter to send to Consultees with Notice – Section 38 or Section 23 applications
• Annex C1 Form of Letter to send to Consultees with Notice – Article 12 applications
• Annex D Form of letter for you to send us to confirm that the advertising requirements have been met
• Annex E List of Guidance Sheets available

Annex A

Form of Notice for advertising your proposals

……………………………….COMMON

Person/organisation [give name] has applied to the Secretary of State for Environment, Food and Rural Affairs for consent under section 38 of the Commons Act 2006/section 23(2) of the National Trust Act 1971/article 12 of the Greater London Parks and Open Spaces Order 1967* to carry out restricted works on ………………… Common. The Planning Inspectorate will decide the application on behalf of the Secretary of State.

The proposed works are: [describe the works/fencing and the area they will cover; e.g. on …….……. square metres/hectares (area) and/or …………… .. metres (length)]

The works/fencing* will be located [give location and any other relevant details ………………………………………………………………………………………]

A copy of the application form and accompanying documents can be inspected at …………………………………… (give the full address including postcode) during normal office hours until [date: at least 28 days from last appearance of notice] A copy of the application form and accompanying documents may be obtained by writing to [give address].

Any representations should be sent in writing ON or BEFORE that date to The Planning Inspectorate, Commons Team at 3A Temple Quay House, Temple Quay, Bristol, BS1 6PN or commonlandcasework@planninginspectorate.gov.uk.

Representations sent to The Planning Inspectorate cannot be treated as confidential. They will be copied to the applicant and possibly to other interested parties. To find out more about how the Planning Inspectorate uses and manages personal data, please go to the privacy notice.

(Insert name and address of person proposing to construct works) (Insert date) * delete as appropriate

Annex B

Example of a Notice (solely for illustration)

LARGISH COMMON

Smallford Football Club has applied to the Secretary of State for Environment, Food and Rural Affairs for consent under section 38 of the Commons Act 2006 to carry out restricted works on Largish Common. The Planning Inspectorate will decide the application on behalf of the Secretary of State.

The proposed works are: (i) a brick changing hut on 146 square metres; (ii) a gravel parking area adjoining the hut on 100 square metres; (iii) a 40 metre length of fencing around the car park.

The works will be located in the south west corner of the common, south of the football pitches, with height-restricted access from Smallston Lane. Visitors to the common will be able to park in the car park on days when it is not being used by the football club. The fencing will be 1 metre high post and rail, and two stiles and one access point for the disabled will be provided.

A copy of the application form and accompanying documents showing the proposed works can be inspected at Smallston Post Office, Small Street, Smallston, Smallshire, SM1 1VS between normal office hours until the twenty-fifth day of May 2008. A copy of the application form and accompanying documents may be obtained from Smallford Football Club, at the address below.

Any representations should be sent in writing ON or BEFORE that date to:

The Planning Inspectorate,
Commons Team 3A
Temple Quay House,
Temple Quay,
Bristol,
BS1 6PN

or commonlandcasework@planninginspectorate.gov.uk. Letters sent to the Planning Inspectorate cannot be treated as confidential. They will be copied to the applicant and possibly to other interested parties. To find out more about how the Planning Inspectorate uses and manages personal data, please go to the privacy notice.

S Large
Smallford Football Club Secretary
10 Largish Common Road
Smallshire
SM10 6SL

26 April 2019

Annex C

FORM OF LETTER TO SEND TO CONSULTEES ENCLOSING A COPY OF THE NOTICE (ALLOW 5 DAYS FOR POSTAL DELAYS)

COMMONS ACT 2006 – SECTION 38*

NATIONAL TRUST ACT 1971 - SECTION 23*

I am/We are* applying to the Secretary of State for Environment, Food and Rural Affairs (Defra) for consent to construct works on (Name of) Common under section 38 of the Commons Act 2006/section 23 of the National Trust Act 1971*. The Planning Inspectorate will determine the application on behalf of Defra.

I am/We are* required to give you notice of our proposals, and am/are* sending you a copy of the attached notice in order to comply with that requirement.

[For section 38 applications only:

Under section 38, I/we need Defra’s consent to carry out any restricted works on land registered as common land under the Commons Registration Act 1965 or the Commons Act 2006 (and on certain other land specified in section 38).

Restricted works are any that prevent or impede access to or over the land. They include fencing, buildings, structures, ditches, trenches, embankments and other works, where the effect of those works is to prevent or impede access. They also include, in every case, new tarmac (or similar) surfaces, such as for a new car park or access road.]

[For section 23 applications only: Under section 23, we need Defra’s consent to carry out certain works on National Trust land, which prevent or impede access by the public.]

Defra’s decision will be based on the merits of the proposal, and will balance all the interests in the common, taking account of all views expressed. Regard must be given to the criteria set out in section 39 of the Commons Act 2006. These are:

(a) the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it);

(b) the interests of the neighbourhood;

(c) the public interest, which includes the public interest in:

• nature conservation
• the conservation of the landscape
• the protection of public rights of access to any area of land, and
• the protection of archaeological remains and features of historic interest;

(d) any other matter considered relevant.

These criteria will be viewed in the light of the overriding objective of protecting, maintaining or improving the common, and of ensuring that the overall stock of common land is not diminished. This will enable the diversity, variety, and overall extent, of common land to be safeguarded.

Any representations about the proposal should be sent to the Planning Inspectorate by the closing date specified in the notice.

*delete whichever does not apply

Annex C1

FORM OF LETTER TO SEND TO CONSULTEES ENCLOSING A COPY OF THE NOTICE (ALLOW 5 DAYS FOR POSTAL DELAYS)

Greater London Parks and Open Spaces Order 1967 – ARTICLE 12

We are applying to the Secretary of State for Environment, Food and Rural Affairs (Defra) for consent to construct works on (Name of) Common under the above provision. The Planning Inspectorate will determine the application on behalf of Defra.

We are required to give you notice of our proposals, and are sending you a copy of the attached notice in order to comply with that requirement.

Under Article 12, we need Defra’s consent to construct buildings or other structures, or to permanently enclose common land, in pursuance of our powers in Article 7 to provide facilities for public recreation.

Defra’s decision will be based on the merits of the proposal, and will balance all the interests in the common, taking account of all views expressed. Regard must be given to the criteria set out in section 39 of the Commons Act 2006. These are:

(a) the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it);

(b) the interests of the neighbourhood;

(c) the public interest, which includes the public interest in:

• nature conservation
• the conservation of the landscape
• the protection of public rights of access to any area of land, and
• the protection of archaeological remains and features of historic interest;

(d) any other matter considered relevant.

For article 12 applications, the article 7 provision for formal public recreation will be a relevant matter to take into account under (d) above. For similar reasons, the public interest to be taken into account is likely to include the public interest in formal recreation as well as in the other interests listed in (c) above.

These criteria will be viewed in the light of the overriding objective of protecting, maintaining or improving the common, and of ensuring that the overall stock of common land is not diminished. This will enable the diversity, variety, and overall extent, of common land to be safeguarded.

Any representations about the proposal should be sent to the Planning Inspectorate by the closing date specified in the notice.

*delete whichever does not apply

Annex D

FORM OF LETTER WHICH SHOULD ACCOMPANY YOUR APPLICATION CONFIRMING THAT THE ADVERTISING REQUIREMENTS HAVE BEEN MET

COMMONS ACT 2006 – SECTION 38*

NATIONAL TRUST ACT 1971 - SECTION 23*

GREATER LONDON PARKS AND OPEN SPACES ORDER 1967 – ARTICLE 12

DATE OF APPLICATION [INSERT DATE]

[INSERT NAME OF COMMON]

I confirm that:

A. I have published notice of the application in (give the name of the main local newspaper in which the notice was published) on (give the date of the advert). A copy of the extract from the newspaper is enclosed. (This should be the entire sheet, including the extract itself, but also showing the name and date of the newspaper).

B. I have sent a letter based on the one at Annex C/C1/C2* to all those listed in Section I of the application form (you must use only the specified email addresses for Natural England and Open Spaces Society). A copy of the letter sent is attached. Those consulted were as follows:

(list all those consulted, including, for organisations, the name of the contact, and include the nature of the person’s interest in the land, if any)

C. I posted a notice of application at the principal places of entry to (or, if there are no such places, at a conspicuous place on the boundary of) the common land on which the works are proposed on (give the date) and I will maintain them there until the end of the objection period.

D. I have placed a copy of the complete application, including the notice and map, at the inspection point given in the notice. These documents will remain there until the end of the objection period.

*delete whichever does not apply

Annex E

LIST OF GUIDANCE SHEETS

Guidance sheet 1a Consent to construct works on common land

Guidance sheet 1b Works and processes that do not need section 38 consent

Guidance sheet 1c Works exempt from section 38 consent

Guidance sheet 2a Works on National Trust commons

Guidance sheet 2b Works on Town and Village Greens

Guidance Sheet 2c Works and Schemes of Management

Guidance Sheet 2d Works on London Borough commons

Guidance sheet 3 Public inquiries and hearings

Guidance sheet 4 Car Parks, Access Roads, Tracks and Footpaths

Guidance sheet 5 Maintaining and Extending Existing Works

Guidance sheet 6 Modifications and conditions (attached to a section 38 consent)

Guidance sheet 7 Applications to vary or revoke a modification or condition

Guidance sheet 8 Sites of Special Scientific Interest (SSSIs) and other European conservation sites

Guidance sheet 9 Works that are exempt from section 38 controls

Guidance sheet 10 Highways and cattle grids

Guidance sheet 11 Rights of Way

Guidance sheet 12 Enforcement against unlawful works on common land