Statutory Protection of Common Land
The Commons Act 2006 (Section 38)
The Commons Act 2006 introduced a new consenting regime, replacing the existing regime and came into force in England on 1st October 2007. Section 38 replaces section 194 of the Law of Property Act 1925, which is repealed by the 2006 Act. Under section 38, consent is generally needed from the Secretary of State for any restricted works on registered common land. Restricted works are those which prevent or impede access to or over the land, which might include erecting fencing, constructing buildings, digging ditches, but also includes the resurfacing of land with tarmac and similar materials..
A Section 38 application to the Secretary of State would need to be made in addition to any normal planning application to the local planning authority which might be necessary. Anyone wishing to make an application will need to apply to: :
The Planning Inspectorate
Commons and Greens Protection Team
Rm 4/05
2 The Square
Temple Quay House
Temple Quay
Bristol
BS1 6PN
Phone: 0117 3728956
Where permission has not been obtained and works have been carried out, an application may be made to the County Court by either the owner of the land, the commoners, or a County or District Council for the removal of the works and restoration of the land to its original condition. A right of appeal against any decision of the Court exists.
The Law of Commons Amendment Act, 1893 (Section 2)
Any inclosure or approvement of a common (removal of common rights and enclosure of the land) is not lawful unless the Secretary of State for the Environment, Food and Rural Affairs has granted permission. In deciding whether or not to give permission, the Secretary of State will consider the proposal in relation to the benefit to the neighbourhood, why it is necessary to use the common land, the number of common rights exercised over the land, and what sufficiency there is for exercise of rights (for example; is the land currently capable of supporting more grazing rights than there are being exercised).National Trust Acts, 1907 (Section 29) and 1971 (Section 23)
Section 29 of the 1907 Act requires the National Trust to keep all commons or commonable land open and unbuilt on as open spaces for the recreation and enjoyment of the public. There are some exemptions for certain works or improvements to promote the enjoyment of such land. Section 23 requires the Secretary of State's permission to be given for any buildings or other works on National Trust owned commons or commonable land if public access to is likely to be prevented or impeded. Some works of improvement to permit better public enjoyment of such land are exempted.Caravan Sites and Control of Development Act, 1960 (Section 23)
This enables District Councils to ban the siting of caravans for human occupation on common land. It does not apply to urban commons (those to which the public have legal access), commons subject to a scheme of management, or land where a site licence is in force.Road Traffic Act, 1988 (Section 34)
This makes it unlawful for a person to drive a motor vehicle on any common land (as well as some other types of land ) without lawful authority (usually, this would be the permission of the landowner). It is not an offence to drive on land in emergency situations. Nor is it an offence under the Act to drive within fifteen yards of the road to park the vehicle on land. However, in the case of common land, byelaws preventing driving or parking may apply. Parking or driving of a vehicle on the land without the landowner's permission would also constitute trespass.Vehicular Access
Section 68 of the Countryside and Rights of Way Act 2000 and regulations made under that section (The Vehicular Access Across Common and Other Land (England) Regulations 2002 have been repealed in England by section 51 of the Commons Act 2006, with effect from 1 October 2006.The provisions were enacted because of the decision of the Court of Appeal in 1993 in Hanning v Top Deck Travel. The judgment of the House of Lords in Bakewell Management v Brandwood in 2004 overruled Hanning. It confirmed that in certain cases where it was possible to grant lawful authority to drive over the common, a prescriptive right could be acquired. An amendment was included in the Commons Bill for that purpose, and section 51 of the Commons Act 2006 has now been brought into force in England.
