The Commons Act 2006 (“the Act”) contains restrictions on what owners of common land can do with their land. Section 38 of the Act provides a prohibition on carrying out restricted works without the consent of the appropriate national authority, which at present is Natural England. Restricted works are defined as works which have the effect of preventing or impeding access to or over the common, in particular, the erection of fences, the construction of buildings and other structures and the digging of ditches and trenches.

There are, however, certain works which do not require consent under section 38 and guidance on these works has been released by the Planning Inspectorate. This guidance provides that works will not need consent if they:

  1. Are so small or of such short duration that they do not impede access
  2. Do not constitute new impediment to access
  3. Facilitate access
  4. Are processes (rather than works) that do not need consent because they do not impede access

Examples of the works which do not require consent include erecting new gates and stiles in existing boundaries, erecting small direction signs and information boards, and resurfacing which consists only of the repair of existing lawfully constructed footpaths, roads and car parks.

Section 41 of the Act provides powers of enforcement against those owners of common land who carry out restricted works without consent. The sanctions are civil and are available to any person. An application may be made to the County Court for an order to either:

  1. Remove the works and restore the land to the condition it was previously
  2. In the event that consent has been given, but the works not carried out in accordance with that consent, for the works to be carried out in such a manner as was specified

This means that action can be taken against landowners not only by the commoners whose rights have been impinged, but also by local authorities who may be more likely to be prepared to face the legal costs of enforcing the provisions of the Act. It could also mean that a common land owner, who has undertaken restricted works without consent, could be forced to carry out remedial works to reinstate the land, thus adding further expense on top of the already mounting legal costs arising through defending the dispute.

It therefore follows that if you are considering carrying out works on your common land or believe that works may have been undertaken without the relevant consents, then we would recommend seeking legal advice.

A number of helpful guidance notes and fact sheets can be found on Natural England’s website.