Guidance

Carrying out works on common land

When you need to apply for consent, how to apply, and the works that you can do without consent.

Common land is land owned by one or more persons, where other people known as ‘commoners’ are entitled to use the land or take resources from it.

Visit your local authority premises and check the commons register to find out about common land in your area.

You must get consent from the Planning Inspectorate on behalf of the Secretary of State for Environment, Food and Rural Affairs to carry out any works that would prevent or impede access to common land or for works for the resurfacing of land.

These works could include:

  • putting up new fences
  • erecting buildings
  • making ditches or banks
  • resurfacing the land
  • building new solid surfaced roads, paths or car parks

You should also consider if your proposed works would comply with the Secretary of State’s common land consents policy.

Extending existing works

If you want to extend existing works that were done legally and the work will impede or restrict access, you need to get consent.

If you want to extend existing works that weren’t done legally, you need to get consent for the new works and the existing ones.

Planning permission

You may also need planning permission for works, you should check with your local planning authority.

Environmental impact assessment (EIA)

Natural England may need to carry out an environmental impact assessment if the works you’re planning could affect the environment of the common or surrounding areas.

Find out the land changes that need EIA consent.

It’s your responsibility to make sure the works you’re doing don’t need consent.

You don’t need consent to:

  • add new stiles and gates in existing boundaries
  • add direction signs and information boards
  • create or widen existing unsurfaced or loosely surfaced footpaths
  • add seats
  • add shooting butts that are smaller than 10 square metres
  • add temporary sheep pens for fewer than 28 days in one year, such as for separating sheep from lambs or lug tagging during a gather or drift
  • burn heather or cut bracken, or manage vegetation by any mechanical means
  • set out areas for sport or games including goalposts, provided they don’t need any major permanent construction
  • add a temporary shelter for fewer than 14 days in 1 year for animals that need emergency veterinary treatment
  • add feeding and watering troughs, provided they’re proportionate to the number of animals that need to be fed
  • add scrapes for grouse or lapwing
  • add larsen traps or crow traps
  • dredge and clear ponds or other bodies of water
  • plant trees and shrubs that do not form a continuous barrier
  • allow the Highways Agency to put up temporary snow fences

Works that are exempt

Some works, like erecting temporary fencing or putting up bollards are ‘exempt’ in certain circumstances - this means you don’t need consent to carry them out.

If you want to carry out these works, you must complete a notice of exemption and send it to the Planning Inspectorate.

You must also display a copy of your notice of exemption on the site where you’re carrying out the works.

Erecting fencing for up to 6 months

You can erect temporary fencing on commons for up to 6 months to restrict the movement of grazing animals.

To do this, you must be:

  • the owner of the land
  • a commoner (anyone who has rights of common on the land)
  • anyone acting with written consent of the owner

The area you want to fence off must not be bigger than either 10 hectares or 10% of the area of registered common land that it’s part of, whichever is the smaller area.

It can’t exceed this size limit, either by itself or cumulatively with any other areas in the same area of registered common land which you have fenced off without section 38 consent.

If you fence off a piece of land for 6 months under this exemption, you must then remove the fences for 6 months before you can fence it off again.

Erecting fencing for up to 1 year

You can put up temporary fencing for up to 1 year (or up to 3 years on moorland) to protect vegetation if you’re growing or restoring it.

The area you fence off must not be larger than 1% of the area of registered common land it’s part of.

It also can’t have been enclosed within the previous year.

To do this, you must be:

  • the owner of the land
  • a commoner (anyone who has rights of common on the land)
  • anyone acting with written consent of the owner

Erecting fencing for up to 5 years

You can put up temporary fencing for up to 5 years if you’re restricting access to conserve nature.

The area you want to fence off can’t be bigger than 1% of the area of registered common land that it’s part of, by itself or along with other areas in the same area.

To do this, you must:

  • own the land or have written consent from the owner to prove you’re working on their behalf
  • have a written agreement with Natural England or the Secretary of State requiring you to conserve nature

Installing rows of obstacles

You can install a row of obstacles, such as bollards or large stones to stop vehicles accessing common land - it can’t be greater than 200 metres in length.

You can’t have more than one row of obstacles on your land (that is within a single land registry unit).

You can extend an existing row of obstacles, but the combined length of the original row and the extension can’t be more than 200 metres.

You can only do this if vehicles accessing the land would:

  • stop members of the public using it for recreation or commoners from exercising their rights of common
  • damage the land

To do this you must be either:

  • the owner of the land
  • any other person acting with the written consent of the owner of the land

Consult interested parties

Before you apply for consent to carry out works, you should talk to:

  • the owners of the land
  • the commons council or association (if there is one)
  • all active commoners
  • others with a legal interest, for example tenants, anyone who has an easement or other rights and covenants over the land
  • any parish, district, city or county council in the same area as the land
  • Natural England
  • Historic England
  • National Park Authority (if the area you want to work on is in a National Park)
  • the Area of Outstanding Natural Beauty (AONB) conservation board or joint advisory committee (if the area of land you want to work on is in an AONB)
  • the Open Spaces Society

If you can reach a consensus with these interested parties, this may make your application more likely to succeed.

You may also want to talk to:

You need to follow the principles set out in ‘A Common Purpose: a guide to agreeing management on common land’.

Complete an application form

Download and complete a section 38 application form if you want to do work that needs consent.

The Planning Inspectorate has a series of guidance sheets to help you with your application.

Send your application to the Planning Inspectorate.

Publicising your application

When you’ve sent your application form, you must give public notice:

Your notice must tell people where they can see the application if they want to examine it further.

You must also send it to:

  • the owners of the land
  • the commons council or association (if there is one)
  • all known commoners (whether they’re actively using their rights or not)
  • any others with a legal interest, for example tenants, anyone who has an easement or other rights over the land
  • any parish, district, city or county council in the same area as the land
  • Natural England
  • Historic England
  • National Park Authority (if the area you want to work on is in a National Park)
  • Area of Outstanding Natural Beauty (AONB) Conservation Board or joint advisory committee (if the area of land you want to work on is in an AONB)
  • the Open Spaces Society

You must give interested parties a minimum of 28 days from the posting of the notice to comment to the Planning Inspectorate.

Assessment

The Planning Inspectorate will assess your application based on how your plan affects the interests of:

  • anyone who has rights on the land or is occupying it (particularly anyone exercising rights of common over it)
  • the neighbourhood
  • the public interest, for example nature and landscape conservation, protecting public rights of access to any area of land, archaeological remains or features of historic interest
  • any other matters the Planning Inspectorate considers to be relevant

The Planning Inspectorate will assess your application with a view to managing, improving or protecting the common and maintaining its traditional uses.

They’ll ask for comments on the application - they’ll send you any objections and give you a chance to reply.

Hearings and site visits

The Planning Inspectorate will make their decision based on your evidence and any objections.

In some cases they may decide to conduct a site visit, hearing, or public inquiry.

The Planning Inspectorate may decide to hold a hearing or inquiry in cases where they decide that:

  • the issues of the case are particularly complex
  • the application evidence needs to be tested

In a hearing or inquiry, you’ll have to present your case to an inspector - other parties who are affected by your proposal can also make their case.

Decisions

The Planning Inspectorate will usually give you a decision within 6 months of receiving your application.

You may get a decision before 6 months if there aren’t any objections to your plans - your decision will be delayed if the Planning Inspectorate has to hold a hearing or a public inquiry.

In making the decision, the planning inspector will use the Secretary of State’s common land consents policy.

You can start work once you’ve heard from the Planning Inspectorate that you have consent, provided you have any other permissions that you need, for example planning permission.

Changing the common’s purpose

You can apply to the Planning Inspectorate on behalf of the Secretary of State for consent to deregister common land, if you want to carry out works on a common that aren’t consistent with what it’s been traditionally used for.

These works could include:

  • new fences
  • buildings
  • trenches
  • embankments
  • access roads
  • tracks or other works purely for private benefit or work to maintain, alter or extend these works
  • extensions to private gardens
  • wind farms
  • highway works
  • private car parks
  • access roads
  • fencing without appropriate public access

If the area of land you want to deregister is bigger than 200 square metres, you’ll have to offer land in exchange for it. If your application is successful, this ‘exchange land’ will be registered as common land.

The land you offer must be of equal value to those that use the common and should usually be next to the common land you want to work on.

Find out more about deregistering common land.

To apply, complete a section 16 application form and return it to the Planning Inspectorate.

You must pay £4,900 to apply to do this - when sending your application, include a cheque for this amount made payable to ‘The Planning Inspectorate’. If you want to pay by BACS contact the Planning Inspectorate.

The application to do this must be made by both the owner of the common land and the owner of exchange land - if you don’t own both, send a joint application.

Your application will always be subject to a site visit.

The Planning Inspectorate may also decide to hold a hearing or an inquiry in cases where they:

  • have received a lot of objections in response to your application
  • decide that the issues of the case are particularly complex
  • decide that an hearing or an inquiry appears to be the only way to get the information they need to decide on your application

In a hearing or inquiry, you’ll have to present your case to an inspector - other parties who are affected by your proposal can also make their case.

Decisions

The Planning Inspectorate will usually give you a decision within 6 months of receiving your application.

You may get a decision before 6 months if there aren’t any objections to your plans - your decision will be delayed if the Planning Inspectorate has to hold a hearing or public inquiry.

In making the decision, the planning inspector will use the Secretary of State’s common land consents policy.

Court action against unlawful works

Anyone can take civil action against someone who carries out works on a common without consent, or to enforce the conditions of a consent.

Before you take action, you should [check the works which have been given consent or are exempt and look at Common Land Guidance note 12.

You can apply to the county court for an order to have unlawful works removed or to enforce the conditions of consent - talk to a solicitor to do this.

This only applies to works carried out since 1 October 2007 - only local authorities or those with a legal interest in the land (that is owners or tenants) can take action against unlawful works done before then.

Works on National Trust commons

The National Trust can carry out works on its commons if the works will improve the land for the public.

If the works will prevent or impede access to the land the National Trust must get consent from the Planning Inspectorate.

Check Annex C to find a list of works that the National Trust has agreed it won’t seek consent for.

To apply for consent for works on National Trust land, you must:

  • complete an application form and publish a notice in a local newspaper using the wording in Annex A of this guidance
  • the application must be accompanied by a letter from the National Trust’s solicitor supporting the works and the opportunities they provide for the public to enjoy the land

Retrospective applications

You can apply for consent for works that you’ve already carried out - for example to deal with an emergency. You don’t need to consult first.

Contact the Planning Inspectorate

Email applications for consent to commonlandcasework@pins.gsi.gov.uk

You can also post applications for consent to:

The Planning Inspectorate
Hawk 3F
Temple Quay House
2 The Square
Temple Quay
Bristol
BS1 6PN

Telephone: 0303 444 5637

Find out about call charges

Published 28 March 2015
Last updated 18 May 2016 + show all updates
  1. Process for retrospective applications clarified.
  2. Removed the Secretary of State’s common land consents guidance and the 2011 sustainable policy letter and replaced with a link to an updated policy document.
  3. First published.