16 February 2023

Common land is land subject to rights enjoyed by one or more persons, who may take or use a piece of that land or the produce of that land, which is owned by someone else. Individuals who exercise legal rights over common land are referred to as 'commoners'. The public also have a legal right of access to common land for recreation.

Can I develop on common land?

Common land cannot be developed unless certain consents are secured. Section 38 of the Commons Act 2006 sets out the conditions in which consent can be granted in relation to works on common land. Works which require consent, ‘restricted works’, are any which "prevent or impede access to or over the land, and also include resurfacing works".

Many consents pursuant to section 38 have been granted but the case of The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2022] EWHC 3044 is the first time (or certainly since regular reporting of cases has been undertaken) that a question about section 38 has been before the courts.

What did the recent case involve?

The inspector granted section 38 consent for the construction of a new link road over common land. The common land in question is a narrow strip of land adjacent to a road situated within the Barking Tye Common in Suffolk. The applicant, a developer of a residential development site comprising 9 properties, applied for consent to construct an access road to connect the development to a public highway.

This case focused on the Secretary of State's policy for determining common land applications: the Common Lands Consents Policy 2015 (the "CLCP"). In public law, it is considered an offence to depart from public policy, however, existing case law suggests that public policy may be circumvented if there are 'good grounds' (Mandalia v Secretary of State for the Home Department [2015] UKSC 59). 

The claimant argued the Secretary of State had no good reason to depart from the CLCP: in particular, alleging that the developer was not asked by the inspector to consider alternative avenues for gaining consent. Instead, they argued that the developer should have considered deregistration of the land under section 16 of the Commons Act 2006.

The Judgment

The Judge held that:

  • Contrary to the claimant’s case, guidance in the CLCP for deregistering common land (section 16 Commons Act 2006) is not applicable to section 38 applications;
  • The CLCP provides that the applicant must undertake “a robust exploration of potential alternatives”. In this context, this duty may extend to considering deregistration (under section 16); and
  • Applications for vehicular access over common land should properly consider alternatives, but do not need to meet a greater bar of an “only practical means” test.
  • The application would not adversely affect those with interest in the common; have a significant adverse impact on the neighbourhood; or cause significant harm to the public interest of conservation, landscape and public access (the “specific circumstances” of the case).

Consequently the Judge concluded that the inspector had not misunderstood the CLCP and had provided reasonable justification for a divergence due to 'specific circumstances'. It was determined that section 38 consent should not be withheld and the original decision could be upheld. 

This update was written by Cathryn Tracey. If you would like to discuss the impact of this judgment or any other common land query, please contact Cathryn or Julian Boswall.

Key contact

Julian Boswall

Julian Boswall Partner

  • Energy and Utilities
  • Infrastructure
  • Planning and Compulsory Purchase

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