Obtaining Consent
Does s.38 apply?
Check whether the proposed works fall outside the provisions of the Commons Act 2006 due to their scale or the fact that they facilitate access or because they are regarded as a traditional management process, such as heather burning. (Refer to the Government guidance.)
Statutory Instrument 2587/2007 defines certain works which are exempt. For such works it is necessary to send a notice of exemption in the standard format to the Planning Inspectorate and to post the same notice at entry points to the common.
If the works are not consistent with the traditional use of the common and therefore unlikely to obtain consent under s.38 then it may be still be possible to proceed with the works if there is scope for land exchange. Click here for more information.
Prior to making an application
It is essential to consider all options before concluding that works on a common are appropriate. Ensure that your aims and the options available to you can be clearly articulated to stakeholders and the Planning Inspectorate. You must check whether planning permission is required before applying for s.38 consent. If you obtain consent before getting planning permission and the planning authority requires you to alter your plans then you will need to make a fresh application for s.38 consent for the revised proposal.
Examine the commons register for the common held by the local Commons Registration Authority and take note of all rights, paying particular attention to those which may be affected by your proposal.
Consult widely with all stakeholders including right holders, commons associations or councils, the landowner, Natural England, parish councils, National Park Authorities, local authorities, Open Spaces Society and English Heritage. Time spent explaining your proposal at this stage, accommodating concerns expressed by others and building a consensus on the management of the common should result in a smoother application process and less likelihood of a hearing or public inquiry.
The application process
The s.38 application form is available from the Planning Inspectorate website together with detailed guidance notes on its completion. Having submitted the form you must, within 7 days, post notices:
in the prescribed form in a local newspaper
at main points of entry to the common and
at a point of inspection referred to in the notice where the application can also be viewed. The notice must also be sent to a number of specified organisations. You must give parties a minimum of 28 days, from the posting of the notice, to comment to the Planning Inspectorate.
Assessment criteria
The application will be assessed against criteria set out in s.39 of the Commons Act. These include the interests of people with rights on and to the land, the interests of the neighbourhood and the public interest, which incorporates nature conservation, landscape, rights of access and historic interest.
Assessment process
The Planning Inspectorate will consider comments on the application and manage correspondence between objectors and the applicant. A decision may be made on the basis of written evidence or, if the application is more complex, the Inspectorate may request a site visit, a hearing or, in extremely complex or controversial cases, a public inquiry.
Conditions
The Planning Inspectorate has the right to impose conditions and modifications on the proposed works. These might include upper time limits for temporary fencing, the removal of works at the end of a time limit, restrictions on the length, height and type of fencing and the area enclosed.
Tip: Consult the Local Access Forum early. They are a voluntary body and may meet only on a quarterly basis but their support for your proposal will be a great help.