Just wondered if you could answer a question for me? Can the owner of a common plant trees on it without consent of the commoners? Well, actually, with the commoners against the planting and with the commoner owning his rights and NOT a tenant of the landowner.


This is interesting as usually it is the fencing associated with the tree planting that requires the Secretary of State consent rather than the actual tree planting. If the trees are to be fenced then Commoners need to be notified as part of the s38 application process and if they object the inspectorate (PINS) will consider this. If it is only one commoner and the others are in favour then it may not be considered a material objection e.g. if most have signed the HLS then they have to agree with the tree planting in the scheme or they are in breach of the HLS. It will only be those who haven't signed that have a right to object. 

I've had a case recently where a commoner decided at the last minute not to sign the HLS and is now objecting that the trees are on 'his' heft. He hasn't though had any sheep on the fell for over ten years and hasn't started grazing again. Also in that case the number are low so there is plenty of space for him to graze though not on his original 'heft'. Not sure what weight the inspector would give to a heft that has had no sheep on it as there are no hefted sheep and 'heft' has no legal rights it is more of a use it or lose it custom and practice. Very important but only exists if in use.

If the trees are not going to be fenced then it is a less clear position. Does tree planting count as works under the Act? I would have thought it should and the commoner could report the works to PINS. 

The commoner(s) also would need to demonstrate that their grazing rights are interfered with and this would depend on the overall stocking level on the common.

Overall the matter will depend on the specific circumstances of the common and the commoner and the scheme (if any)

Julia Aglionby (Chairman FCC)



As mentioned above the matter depends on the specific circumstances. There is a legal presumption that common land will remain unenclosed, unbuilt upon and free from any fences or other works that impinge on access to the land.

If  the apple tree planting is small and does not impede access it is unlikely to require  s.38 consent.

Refer to the Planning Inspectorate Common Land Guidance Sheet 1b - you can download it here http://www.planningportal.gov.uk/uploads/pins/common_land/guidance/guidance_sheet_1b_works_outside_s38.pdf

Also see the Common Land Toolkit Fact Sheet 11 "Fencing and other works in common land" at http://publications.naturalengland.org.uk/publication/36015?category=40026

It is also important to rememebr that works or processes on a common may
need consent under other legislation e.g. planning permission.