What Is Common Land?
The concept of common land dates back to the days of manors when land ownership was limited to the elite few. Today, common land refers to land where members of the public enjoy rights, often in relation to recreation, such as dog walking but can extend to animal grazing and fishing rivers. The term common land suggests it is owned by the Crown or local councils. In fact, most common land is in private ownership, but subject to public rights. Although there is a regime for the registration and management of common land, which was introduced by the Commons Act 2006, it is still the case that not all common land has been registered. The fact common land has not been registered does not preclude registration in the future.
If the land is registered it will be deprived of much of its value. With this in mind, it is important that potential buyers and developers be cautious and consider its possible existence at the outset when carrying out their due diligence. Tell-tale signs include gaps in fences or hedges, well-worn routes across open land, and football nets, for example.
Can Common Land Be Developed?
Owners of common land enjoy, in large, the same rights as other landowners, meaning it can be developed BUT there are restrictions on a landowner’s ability to develop and use the land. The list of restricted works explicitly includes constructing buildings, erecting fences and resurfacing land, for example by laying concrete or tarmac. Therefore, it is important that owners or parties looking to buy common land carefully consider what requirements they may need to satisfy to be able to do so, which can delay the development.
How Can Common Land Be Developed?
According to Section 38 of the Commons Act 2006, any works that “prevent or impede access to or over the land, and also include resurfacing works” may only be carried out on common land with consent from the Secretary of State.
Other types of work may be carried out without consent as they are exempt in certain circumstances such as temporary fencing or bollards. It is the responsibility of the applicant, either owner or prospective buyer, to determine whether consent is needed.
The case of Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs  EWHC 3044 is one of the few occasions that a question about section 38 has been considered before the courts.
The case involved the granting of section 38 consent for a new link road over common land, adjacent to a road in a common. The applicant, a residential developer, sought permission to construct an access road. The Open Spaces Society argued that the Secretary of State did not have a valid reason to depart from the Common Land Consent Policy 2015 and that alternative strategies were not considered. However, the judge found that the inspector had reasonable justification for the deviation due to special circumstances, leading to the approval of section 38 consent.
If it is determined that consent is needed and where the development of the common land would not allow the public to enjoy their rights, the owner or developer must apply to have the land deregistered and removed from the list of common land.
In the event that the land is more than 200 square metres, an application must be made for deregistration and replacement land be offered to be registered as common land in its place.
If the land is under 200 square metres, an application for deregistration is not required to contain an offer of replacement land. However, DEFRA guidance states it will be expected in most cases to ensure that the bank of common land across the country is not reduced. Any replacement land must be suitable for the exercise of the relevant public rights and deemed to be the best possible outcome for local people and public interests. Any application for deregistration is made to the Secretary of State, but is dealt with by the Planning Inspectorate, who has the discretion to exercise deregistration. It is likely that any such application will be complex and specialist planning advice should be obtained.
In essence, common land can be problematic for redevelopment if it is not considered in the early stages of working up the scheme. It is therefore advisable to establish whether any future development will be carried out over common land, and early engagement, including obtaining the relevant consents, may well be necessary to mitigate any future risks.
A work around may be possible if the Planning Inspectorate can be convinced of the value of the scheme and public benefit of the replacement land offered.
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