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Session 5

Commons and AccessNicola Hodgson

and Kate Ashbrook

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Commons Act Part 3: Works

We need your help

• To ensure the public have access to common land

• Local knowledge invaluable

• OSS are statutory consultees

• Local correspondent input vital 

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Commons Act 2006, Part 3

Commons Act 2006, Part 3Works on common land and exemptions:

Sections 38 and 39 of the Commons Act 2006

Consent required from the Secretary of State for Environment, Food and Rural Affairs

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Works on common landWhat we shall cover

Rules for works on common land Procedure to follow Use of exemptions Exchange land Taking action against unlawful works

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Rules for works on common land

Section 38 of the Commons Act 2006 replaces Section 194 of the Law of Property Act

1925 applies to all registered commons, those

regulated under the Commons Act 1876, Metropolitan Commons Act 1866, and Commons Act 1899, and New Forest.

Also applies to all village greens which are regulated under the Commons Act 1899.

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Rules for works on common land

Restricted works need Secretary of State consent Works which prevent or impede access to or over

land, to include: fencing, building and other structures, ditches

and embankments Works for resurfacing e.g. concrete, tarmac

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National Trust Commons

Governed by Section 23 of the National Trust Act 1971

Section 38 consent is required

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Procedure to follow

For all but minor works, applicant should consult before submitting application

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Procedure to follow

Submit application to Planning Inspectorate Forms and guidance notes on PINS website

http://www.planningportal.gov.uk/planning/countryside/

OSS is a statutory consultee

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Procedure to follow

Objections submitted to PINS PINS will consult applicant and communicate with

objectors PINS will determine application by written

representations, a hearing or a public inquiry

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Procedure to follow

In deciding whether to give consent, PINS will have regard to: Interests of those with rights on the land Interests of the neighbourhood The public interest (includes nature and

landscape conservation, public access rights, archaeological and historic interest)

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Procedure to follow

PINS can amend the application PINS will take account of previous consents on

land and Defra policy guidance Consent may be given for retrospective

applications

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Exemptions

Grazing: temporary fencing up to 6 months, up to 10ha or 10% of commonsRestoration: temporary fencing up to 3 yearsNature conservation:temporary fencing up to 5 yearsPrevent vehicular access: row of obstacles

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Exemptions

Applicant must send notice to PINS who display it on their website but no requirement to display map

Onus on applicant to obey law If applicant exceeds the exemption provisions, in

time or extent, the works are unlawful

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Exemptions

Exemptions useful to test effect of grazing, e.g. Turville Heath Common, Bucks, Chorleywood Commonfor growth ofvegetation

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Works on common landExchange land

Section 16 Commons Act 2006

Deregistration and exchange land

Applies to common land and village greens

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Works on common landExchange land: Criteria

Area of land more than 200sqm, the application must include exchange land

Area of land less than 200 sqm, the application may include exchange land

The replacement land must not already be registered as common land or village green

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Works on common landExchange land: Process

Application is made to PINS who must have regard to

The interests of those with rights or occupying the release land

The interests of the neighbourhood The public interest Any other matter considered to be relevant

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Works on common landExchange land

Successfully resisted application to deregister and exchange common land at Crowborough Common, East SussexThe land is owned by Crowborough Golf Club and in 2006 and 2007 OSS initially raised concerns that the public had the right to use the land for air and exercise under section 193 of the Law of Property Act 1925. This led to signs being erected to inform the public that it could use the land.

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Works on common landExchange land

The golf club made an application in 2008 (under section 16 of the Common Act 2006) to deregister part of the land and provide exchange land. We objected to the application and OSS support

boosted local opposition in objectingto the application to deregister nearly four acres of the common to make way for building development.

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Works on common landExchange land

The application would have meant a loss of amenity for local people as the proposed exchange land was inaccessible, further from the town and would lead to fragmentation of the common.We encouraged local people to objectand the opposition became so strongthat the first day of the inquiry had tobe adjourned as there was not enoughroom for all the local people whowanted to attend.

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Works on common landExchange land

The inspector concluded that ‘in terms of amenity and views, thereplacement land would not be as valuable to the neighbourhood as the release land.’

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Works on common landExchange land

The land has been saved for community use and has resulted in the formation of a strong local group for the benefit of the community as a whole. The local group, ‘Save our Common’ now has a website www.crowboroughcommon.org.uk.

It has made a proposal to the landowner that a ‘Friends of Crowborough Common’ be set up to promote the conservation, maintenance, protection and peaceful enjoyment of the common

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Campaign success

Before our campaign Barriers gone