Guidance

Common land guidance sheet 2c: Works and schemes of management

Updated 25 May 2021

Applies to England and Wales

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The following guidance explains the circumstances in which our consent is needed to carry out works on a common regulated by a Scheme of Management made under the Commons Act 1899 (a “scheme common”) or by local legislation. (References in this guide to “schemes of management”, “scheme(s)” and ”scheme common(s)” include commons regulated by any local legislation.) You should satisfy yourself that, under the terms of any scheme, consent under section 38 of the Commons Act 2006 is needed for the proposed works. If you are in any doubt you should seek your own legal advice. As well as consent under section 38 other consents may be required under the terms of the scheme from, for example, the owner of the land or from the holders of common rights.

How do I know if I need Secretary of State consent for works on a scheme common?

If the terms of the scheme allow works to be carried out without requiring the Secretary of State’s consent under section 38 then such consent is not needed. Read the terms of the scheme carefully as individual schemes vary. As a guide, the current model scheme (set out in 1982 Regulations, SI 1982/209) allows works for:

  • protecting and improving the common, e.g. drainage, raising, levelling or other works;
  • preventing accidents, e.g. fencing any quarry, pit, pond, stream or other like place;
  • preserving the turf, shrubs, trees, plants and grass, e.g. fencing portions for short periods (to rest the land - section 38 exemption 2 in Guidance Sheet 1c, planting trees and shrubs (for shelter or ornament), placing seats on the common, and lighting the common;
  • otherwise improving the common as a place for exercise and recreation, e.g. setting apart areas for games, forming grounds for cricket, football, tennis, bowls and other similar games, and temporarily enclosing such grounds with any open fence.

ALL OTHER RESTRICTED WORKS (as defined in section 38(2) of the Commons Act 2006) need consent under section 38 (as provided for by section 42 of the Act). This includes any works that are specified in the scheme as needing our consent as well as any that are prohibited by the scheme. Consent given under section 38 overrides any such prohibition in the scheme.

What is the situation for works on scheme commons that are not “restricted” under the section 38(2) definition?

Where works that are not restricted are authorised by a scheme without any requirement for our consent then it follows that our consent is not required to carry them out.

Where works that are not restricted are prohibited by the scheme then the terms of the scheme apply and the works are prohibited; it is not possible to apply for s38 consent.

There is only one circumstance in which our consent must still be sought under the terms of the scheme itself (rather than under section 38): that is where a scheme authorises works that are not restricted, subject to obtaining our consent.

The procedure will depend on the terms of the scheme but an application is likely to be determined using the criteria and procedures of sections 39 and 40 of the 2006 Act.

Do the works and processes set out in Guidance Sheet 1b apply to scheme commons?

In most cases, the answer is likely to be yes, but the terms of the scheme and this guidance should always be the first point of reference in determining the correct course of action to follow where works on a scheme common are proposed. So, even where works and processes do not need s38 consent they may still need consent under the scheme.

Some works are exempt by order (SI 2007 No. 2587) from the section 38 consent process. Do these exemptions apply where the common is subject to a Scheme of Management?

In most cases, the answer is likely to be yes, but the exemptions under the order apply only to registered common land. They do not apply to scheme commons which are unregistered. In such cases, consent under section 38 should be sought in the normal way for works on scheme commons that would otherwise be exempt under the order.

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