Fencing and Other Works on Common Land

Background

There has been a legal requirement to obtain Secretary of State consent to carry out fencing or other works that prevent or impede access on common land since 1925 (Law of Property Act s.194).

This requirement was a response to pressure from the Commons Preservation Society (now the Open Spaces Society) to prevent the continuing loss of common land through inclosure and the extinguishment of common rights.

The Commons Preservation Society was established in 1865 and its initial work was targeted atsecuring continuing public benefit from commons in metropolitan areas.




Current legal position

The requirements of s.194 of the Law of Property Act were replaced and strengthened by the Commons Act 2006.

Whereas the earlier Act applied only to land subject to rights of common on the first of January 1926, s.38 of the 2006 Act applies to:

  • all land registered as common under the 1965 Commons Registration Act,

  • land regulated by a Provisional Order Confirmation Act under the 1876 Commons Act, and,

  • land subject to a scheme of management under the Metropolitan Commons Act 1866 or the Commons Act 1899.

The consent process is now administered by the Planning Inspectorate on behalf of the Secretary of State for Environment, Food and Rural Affairs.

Works on commons owned by the National Trust are covered by separate legislation – The National Trust Act 1971. Both Acts require that consent is obtained for any restricted works that will prevent or impede access. Such works include fences, buildings, ditches, forestry, banks, new solid surfaced roads, paths and car parks.




Works that do not require s.38 consent

Works not requiring s.38 consent fall into three main categories:

  • Works that facilitate access, such as new stiles and gates, small signs, seats and creating or widening loosely surfaced or unsurfaced footpaths.

  • Works that are so small that they do not impede access, such as water troughs, dredging ponds, planting and protecting individual trees or shrubs, shooting butts under 10sq m, and temporary sheep pens.

  • Traditional management processes such as heather burning and bracken cutting

Please note that this is not a conclusive list. Refer to gov.uk guidance sheet for more information




Works that are exempt

Exemption order SI 2587/2007 defines a number of activities that are exempt from the s.38 consent process. (Refer to the gov.uk guidance sheet)

Most of the exempt items involve temporary fencing to facilitate nature conservation or vegetation recovery. There are specific restrictions on the area enclosed by such fencing and the length of time that it may be erected. In addition, the erection of bollards or barriers for a length not exceeding 200 metres is allowed in order to restrict vehicular access to common land.

However, prior to undertaking such works you must send a notice of exemption to the Planning Inspectorate and post a notice on the site.


Works that are not consistent with the traditional use of the common

If there is a need or wish to carry out works on a common which are not consistent with its traditional use, for example, private car parks, fencing without appropriate access or new buildings such as a hotel or supermarket, then it is possible to obtain consent if there is scope to offer land in exchange for the area affected by the works. The land offered in exchange should be of equal value and should ideally be adjacent to the common land affected.

An application to exchange common land occurs under s.16 of the Commons Act 2006. The application must be made by the owner of the land to be deregistered and, if not the same person, the owner of the land being offered in exchange.

There is a prescribed fee for a s.16 application (£4,900 in 2010). The application will always be subject to a site visit, and possibly a hearing or public inquiry.

It is possible to deregister an area of land of less than 200 square metres without offering land in exchange but only in very exceptional circumstances, such as the provision of a disabled ramp to a village hall.

More information on this process can be found in the gov.uk guidance sheet on the subject.



Emergency works

It is possible to obtain retrospective consent for works carried out in an emergency. It will be necessary to show that the works were proportionate to the scale of the emergency.



Maintaining existing works

No consent is required to maintain existing lawful works but it is required to extend them. (Refer to gov.uk guidance sheet 5.)



Taking action against unlawful works and enforcing consents

The Commons Act 2006 introduced a right for any individual to take civil action against unlawful works on a common or to enforce the conditions of a consent.

S41 allows individuals to apply to the county court for an order to rectify the situation, either by removing the works and restoring the land or ensuring that the works comply with a consent if one has been granted. This right only applies to works carried out since 1st October 2007, prior to that date only local authorities or those with an interest in the land had a right to take action against unlawful works. (Refer to gov.uk Guidance Note 12)

National Trust commons

National Trust commons are not covered by s.38 of the Commons Act 2006; proposals to carry out works impeding access are covered by The National Trust Acts 1907 and 1971. The 1907 Act places an obligation on the National Trust to keep its commons unenclosed and unbuilt on as open spaces for the recreation and enjoyment of the public.

The 1971 Act confers powers on the Trust to carry out works on common land that it considers desirable for public benefit, (s.23(1)). However, if such works will prevent or impede access then s.23(2) requires that consent should be obtained from the Planning Inspectorate, although there is an agreed list of works for which it has been agreed the National Trust will not seek consent.

The process of applying for consent for works on National Trust commons differs in two respects:

  • a s.23(2) application and notice is required

  • the application must be accompanied by a letter from the National Trust’s solicitor concluding that the works are desirable.

For more information on consent for works on National Trust owned commons refer to gov.uk guidance sheet 2a.

Responsibility for fencing a common

It is generally accepted that owners of land adjacent to a common have a customary duty to maintain a fence on the boundary of their land to prevent stock from straying off the common. Such a fence (or wall or hedge) should be reasonably secure and able to prevent the passage of animals that could normally be expected to be turned out on the common in question. This duty extends to property located close to a common even if not directly adjacent. For example, the owners of houses on a road leading to an unfenced common are expected to fence their boundary so as to prevent encroachment by stock straying along the road from the common.

If the common is owned by an individual with land adjoining it, there is still a duty to fence for the benefit of other graziers.

Fencing of fields owned in common is the joint responsibility of the owners of the field.

The responsibility for fencing stinted and regulated pastures (FS1 para 1.2) is less clear and it is often necessary to consult the original inclosure award.

Further information and signposting

Rozzie Weir