Section 38 consent 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.
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. However, the Highways Act does not apply to privately owned and maintained roads and consent under section 38 is therefore needed to construct a cattle grid across such roads.
Obstructing a footpath or bridleway (e.g. by constructing a cattle grid) is unlawful and there is no provision in either the Highways Act or the Commons Act which allows the construction of a cattle grid on a footpath or bridleway. Consent can however be sought under section 38 to construct a cattle grid beside a footpath or bridleway and erect a by-pass gate across the footpath or bridleway.