Is your development reliant upon access over common land?
Published 30 April 2014
Land registered as common land has a special legal status which means you cannot develop or build over that land. However, what happens if your development is reliant upon access over common land?
If you have no express rights of access over the common land, you cannot rely upon prescriptive rights - the law is complex on this issue.
Assuming that you have express access rights and wish to exercise such rights, what works (if any) can be carried out over common land? If you want to build either a temporary or a permanent access to your development over the common land, you will need to obtain consent pursuant to Section 38 of the Commons Act 2006 from the Secretary of State as these are "restricted works". Any works of resurfacing (defined in Section 38 (4) of the 2006 Act as "the laying of concrete, tarmac, coated roadstone or similar material on the land") also constitute "restricted works"and would require Secretary of State consent. However, no consent is required if the works would consist of just a repair of the existing surface of the land.
It is a criminal offence to carry out "restricted works" without the necessary Secretary of State consent.
In addition to any consent needed from the Secretary of State, you will also need the consent of the relevant landowner(s) to carry out works on the common land, and to lay and use any services which formed part of the works, as well as any other statutory consents/agreements or planning permissions.