Applying for Consent to Carry out Works on Common Land
Background
Organisations such as the Open Spaces Society were established in the nineteenth century as a response to the inclosure movement, with the aim of protecting remaining commons and securing long term public access to them. This and other organisations remain committed to maintaining the open nature and accessibility of our common land.
Proposals to fence or build on common land are likely to be controversial due to a widespread desire to retain an accessible, unchanged and open landscape. Practitioners should not underestimate the need for proper planning and options appraisal prior to applying for consent under the Commons Act 2006 s.38. If this is the only option, widespread public consultation and stakeholder engagement is essential.
Before you start – an initial checklist
Determine your aims and consider the full range of options available.
Are “works” really the best or only option?
Do the works need planning permission? If so get this first.
Are the works new or are you maintaining existing lawful works
Decide whether the works fall outside the scope of the Act, are exempt, improve or protect the common or are inconsistent with the traditional use of the common.
Tip: Rather than holding a public meeting consider a drop-in day. More people are likely to express their views and there will be less risk of one or two individuals dominating proceedings.
If you decide that you do indeed need to carry out the works, and that they need consent, you will need to put in an application. Click below for more information on this.
Timescale
As a guide, if there are no objections, and the issues can be resolved by correspondence, the Planning Inspectorate would expect to determine your application within three months of receiving the complete application papers. This might extend to five months if an exchange of correspondence is needed, and a significantly longer period for cases involving a site visit, a public inquiry or a hearing. More complex inquiry cases, or cases where an inquiry is held alongside a related inquiry may take much longer.
You should allow a similar period of time before submitting the application to allow for adequate consideration of options and stakeholder consultation. Consequently the entire process of obtaining s.38 consent is likely to take a minimum of six months and could take well over a year depending on the complexity of the case.
Checklist
Before going ahead with your application, consult this checklist.
Further information and signposting
G. D. Gadsden, The Law of Commons (London: Sweet & Maxwell, 1988).
Angela Sydenham, Commons and Village Greens: The New Law (Corsham: Lime Legal, 2006).
Paul Clayden, Our Common Land: the law and history of common land and village greens (Henley-on-Thames: Open Spaces Society, 2003).
Common Purpose: A guide to agreeing management on common land. (Countryside and Community Research Unit; University of Gloucestershire)