19 November 2018

Common Land Q&A

“Part of a development site I am acquiring is Common Land. What does this mean and how could it impact on my plans for redevelopment?”

What is Common Land?

Common land is a concept harking back to the days of serfs and lords of the manor when land ownership was restricted to the few and the commoners had general rights to roam, graze their animals and forage for firewood, but the ramifications of the regime still have an impact today. The term “common land” refers to land over which the general public have rights, most commonly (no pun intended) a right of access for open-air recreation (dog-walking is the classic example), but, depending on the land, these rights can extend to grazing animals, fishing rivers or even excavating peat.

Whether or not land is common land may not be immediately obvious on inspection (although any obvious paths or enticing looking picnic spots are an immediate red flag), so when considering a development it is essential to raise enquiries of the relevant local authority in the early stages. It is a popular misconception that common land is owned by the Crown or Local Councils. In fact, most common land is in private ownership, but subject to public rights.

If you do find you are dealing with common land, it does not necessarily mean an end to plans for redevelopment, but further steps will need to be taken and consents will likely need to be obtained. Substantial delays to any development timetable should be anticipated and factored in to the development appraisal.

What restrictions come with Common Land?

You cannot carry out restricted works on common land. Restricted works are any works which have the effect of preventing or impeding the exercise of rights of common over common land. The list of restricted works explicitly includes constructing buildings, erecting fences and resurfacing land, for example by laying concrete or tarmac.

How can I still carry out my development?

If the intended development of the common land is consistent with its use as such, for example improving and facilitating access to common land, you can apply for consent to carry out works. This may arise if only a part of a development site is common land and, as part of the larger scheme, that area is designated to remain as open space but you want to improve it and add benches or footpaths etc. alongside substantial works of construction on the neighbouring premises.

You can also apply for consent where the development would not constitute a new impediment to public rights of common, for example if you are refurbishing an existing building on common land.

If the intended development of the common land is inconsistent with its use as common land and would prevent the general public from exercising their rights, you must apply to have the land “de-registered”, so removed from the list of common land. If the land concerned is over 200 square metres, an application for de-registration must be accompanied by an offer of replacement land to be registered as common land in its place. If the land concerned is under 200 square metres, an application for de-registration is not technically required to contain an offer of replacement land, but DEFRA guidance states that it will be expected in most cases so that national stock of common land is not depleted.

The proposed replacement land must be suitable for the exercise of the relevant public rights as a minimum, but DEFRA guidance states that it will also be considered whether the application as a whole represents the best possible outcome both for local people and the public interest at large. An application for de-registration must be made to the Secretary of State, but will be dealt with by the Planning Inspectorate who have a broad discretion to exercise. As an application for de-registration is likely to be complex, specialist planning advice should be sought.

In essence, common land can be problematic for redevelopment if it is not considered in the early stages of working up the scheme. 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.

Kathryn is an associate in our Commercial Real Estate team.

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