Legislation

Making an application for Consent

Section 38 of the Commons Act 2006

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 or resurfacing of land with tarmac and similar materials.

Section 23 of the National Trust Act 1971

Common land owned by the National Trust is subject to different law: the National Trust Act of 1971. Section 23(1) enables the Trust to carry out works on common land that it considers “desirable for the purpose of providing, or improving, opportunities for the enjoyment of the property by the public, and in the interests of persons resorting thereto”, but our consent is often needed under section 23(2).

Article 12 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967

Applications under Article 12 are made by the local authority and must always be in respect of facilities for public recreation that can be carried out under article 7. That article is framed to address the specific needs of London commons, and covers mainly formal recreation.

Article 17 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967

Applications made under Article 17 are made by the local authority and apply to the construction, widening or altering of any street on common land. The application can be to utilise, alienate or exchange the land needed for other land.

Making an application to deregister and exchange common land and town or village green land

Section 16 of the Commons Act 2006

Under section 16, owners of registered common land or town or village greens can apply to have the land released from registration. If the ‘release land’ is more than 200 square metres in area, they must in every case make an application at the same time to register ‘replacement land’ as common land or green in its place. If the release land is smaller than 200 square metres, a proposal to register replacement land will generally also be required unless there are exceptional circumstances.

Making an application to include common land and town or village green land in a compulsory purchase order

Section 19 of the Land Acquisition Act 1981

Under section 19, local authorities, statutory undertakers or government departments can compulsorily purchase land under powers given to them by a wide variety of Acts. Section 19 (1) states that when a compulsory purchase order (CPO) authorises the compulsory purchase of any land forming part of a common (or an open space or fuel or field garden allotment), the order must be subject to special parliamentary procedure unless the Secretary of State gives a certificate under section 19 of the 1981 Act.

Local authorities can make an Appropriation under section 229 of the Town and Country Planning Act 1990 to appropriate land which forms part of a common (or fuel or field garden allotment). “Appropriation” is the process by which a local authority already owns land and holds it for a particular purpose (e.g. as common land or as open space land) but wishes to use that land for a different statutory purpose (e.g. as highways land). Consequently there is no need for the authority to compulsorily purchase the land, but they must “appropriate” it for use for a different purpose. The Appropriation is subject to special parliamentary procedure unless the Secretary of State gives a certificate under section 19 of the 1981 Act.