A Guide to Section 38, Commons Act 2006, based on
Guidance Notes issued by the Planning Inspectorate on behalf of DEFRA
1.
The Scheme of Regulation
http://www.managementreality.com/Sherfield/Scheme_of_Regulation_Highlighted.pdf
2.
DEFRA Guidance: Carrying out works on common
land
www.gov.uk/guidance/carrying-out-works-on-common-land
a.
Works you need consent for:
Erecting buildings
b.
Extending existing works:
If you want to extend existing works that weren’t
done legally, you need to get consent for the new works and the existing ones.
(Note this also applies to replacement
buildings).
c.
Apply for consent
(Note: Detailed summary guidance is given)
a.
Do I need consent?
Under section 38 of the Commons Act 2006 you need our consent to carry out any restricted works on land registered as common land. (Note: Sherfield Village Green is registered).
b.
How do I know whether to apply for consent under section 38?
If you are considering carrying out works, they will fall into one of four
categories:
A.
Works not covered by section 38, e.g. which facilitate rather than impede
access, or are on such a small scale as not to impede access (see
Guidance Sheet 1b).
Some management measures which may be taken on commons, such as cutting or
burning vegetation, are not works and therefore do not need consent.
(Note: Small scale is work such as notice boards).
B.
Works listed in the Exemptions Order which defines a small number of categories
of works where consent is not required (see Guidance
Sheet 1c).
C.
Works (not covered by A or B above) which are for the management, improvement or
protection (or to the negligible detriment) of the common or are otherwise
consistent with the traditional uses of the common (e.g. grazing, public
recreation), for which a section 38 application may be needed (see the Annex to
this Guidance Sheet).
D.
Works that are not consistent with the traditional use of the common, or for its
management, improvement or protection, for which a deregistration and exchange
application under section 16 of the 2006 Act may be more appropriate (see the
Annex to this guidance).
c.
What steps should I take before applying
(Note: provides
advice on consultation)
d.
What criteria are used to decide my application?
The criteria we will have regard to are set out in section 39 of the 2006 Act.
(a) the interests of persons having rights in relation to, or occupying, the
land (and in particular persons exercising rights of common over it);
(b) the interests of the neighbourhood;
(c) the public interest, which includes the public interest in:
·
nature conservation
·
the conservation of the landscape
·
the protection of public rights of access to any area of land, and
·
the protection of archaeological remains and features of historic interest;
(d) any other matter considered relevant.
We will apply these criteria in the light of Defra’s policy objective of
managing, improving or protecting the common and of maintaining its traditional
uses and with reference to Defra’s policy guidance. You will therefore need to
show how the proposed works meet the criteria.
e.
Annex
Category C and D Works: Guidance on application
options for proposals to carry out works on common land where the works are
neither small scale nor exempt from the need to obtain consent.
(Note: Small scale is work such as notice boards).
C. Works which are consistent with the use and enjoyment of the land as common
land
(b) Buildings and other structures
Replacement/extension/construction of buildings/structures, particularly small
ones, that are consistent with the use and enjoyment of the land as common land
(e.g. sporting and recreational use).
Examples might include:
·
Sports club facilities.
·
Cricket nets.
·
Storage sheds for maintenance equipment.
·
Greenkeepers’ huts.
(Note: And several other categories)
4.
Common
Land Guidance sheet 1b: works and processes that do not need section 38 Consent
www.gov.uk/government/publications/common-land-guidance-sheet-1b-works-and-processes-that-do-not-need-section-38-consent
(Note:
Permanent structures are excluded from the works listed)
5.
Common Land Guidance sheet 1c: works exempt from the Section 38 Consent Process
www.gov.uk/government/publications/common-land-guidance-sheet-1c-works-exempt-from-section-38-consent-process/common-land-guidance-sheet-1c
(Note:
This considers day-to-day management issues and is not relevant)
6.
Common Land Guidance sheet 2b: works on Town and Village Greens
www.gov.uk/government/publications/common-land-guidance-sheet-2b-special-consent-provisions-other-than-national-trust
(Note:
this reiterates the protection to a Village Green offered by the Inclosure Act
1857 and Commons Act 1876, mentioned in the letter from the Planning
Inspectorate, and that some work can be judged to be a criminal offence.)
7.
Common Land Guidance sheet 2c: Works and schemes of management
www.gov.uk/government/publications/common-land-guidance-sheet-2c-works-and-schemes-of-management
How do I know if I need the Secretary of State
consent for works on a scheme common?
If the terms of scheme allow work to be carried out without requiring the
Secretary of State’s consent under Section 38 then such consent is not required.
(Note: this is not the case for Sherfield Green)
8.
Common Land Guidance sheet 5: Maintaining and Extending Existing Works
www.gov.uk/government/publications/common-land-guidance-sheet-5-maintaining-and-extending-existing-works
No consent is needed for existing lawful works
provided that maintenance works are within the terms of the original consent.
Consent s needed to extend any lawful works.
Where works have been carried out without the
necessary consent under section 38, you should seek consent for the works and
any new works proposed.
9.
Common Land Guidance sheet 9: works that are exempt from the Section 38 controls
www.gov.uk/government/publications/common-land-guidance-sheet-9-works-that-are-exempt-from-the-section-38-controls-under-section-386
(Note:
these exemptions are not relevant)