Guidance

Common Land Guidance Sheet 1B

Updated 14 September 2018

Applies to England

Works and Processes that do not need Section 38 Consent

You should first consider whether the works you are proposing would have the effect of preventing or impeding access to or over the common. If they do not then, unless the works are for the resurfacing of land, they fall outside of the scope of the restricted works described in section 38 and no consent is needed. We recognise that deciding whether works are outside the scope of section 38 is not always straightforward and any works on common land that may need consent but do not have it may be challengeable through the courts. The following table lists some of the works (and processes about which we are also often asked) that we think fall outside the scope of section 38. (You should remember that to undertake works or processes on a common you may need consent under other legislation e.g. planning permission).

The list is not exhaustive and will be developed and refined over time. It is not an authoritative statement of the law – only the courts can give that.

Works that do not need consent because they:

(a) are so small or of such short duration that they do not impede access

(b) do not constitute a new impediment to access

(c) facilitate access

(d) are processes (rather than works) that do not need consent because they do not impede access

Reason for inclusion (a), (b), (c), or (d):

New gates and stiles in existing boundaries	(a) and (c)
Erecting small direction signs and information boards	(a) and (c)
Resurfacing which consists only of the repair (with a similar surface) of existing lawfully constructed footpaths, roads and car parks	(b)
Creating or widening unsurfaced footpaths	(a) and (c)
Creating or widening loosely surfaced footpaths (e.g., gravel, shingle, stones) for public use where the path is in keeping with the character of the common and facilitates a legitimate use of the common	(a) and (c)
Setting out areas for sports and games, where these are in keeping with the character and traditional use of the land, but excluding any permanent construction	(a)
Placing seats which are in keeping with the character and use of the land	(a)
Small numbers of shooting butts, of no more than 10 sq m	(a)
Temporary fencing of pens for less than 28 days in any one year, e.g. for separating sheep from lambs, and lug- tagging during a gather or drift	(a)
Temporary shelter for less than 14 days in any one year for animals requiring emergency veterinary treatment and recuperation	(a)
Feeding and watering troughs (proportionate to the number of animals that need to be fed)	(a)
Scrapes for grouse or lapwing	(a)
Larsen traps or crow traps	(a)
Dredging and clearing ponds or other bodies of water	(a)
Planting and protecting indigenous trees and shrubs (but not for forestry purposes); not including anything planted that will create a continuous impediment either at planting or after a period of growth	(a)
Burning	(d)
Management of vegetation by mechanical means	(d)
Protecting or renovating turf	(a)
Temporary snow fences erected by the highway authority to maintain road safety	(a)