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Commons Act 2006 - Section 38: Works on Common Land

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Information on common land in Wales and what to do if you are planning to do work on, or take land out of, the common.

Anyone can own common land. Such land can be bought and sold like other land. It differs from other land because:

  • it is normally registered under the Commons Registration Act 1965 (not all registered common land has rights of common over it)
  • it may have a right of public access or the public may be allowed to use it
  • it is protected under the 1965 Act or other legislation.

Common land in Wales can be vulnerable to abuse, encroachment and unauthorised development. The Commons Act 2006 introduced new, clearer measures for protecting common land from unlawful works and encroachment.

Consents to works on common land

Under section 38 of the Commons Act 2006 consent is required for any works on common land which limit access to, or over, that land. It does not matter who proposes the work - the owner or someone with commoner’s rights etc -consent is still needed. Other consents may also be required i.e. planning permission or building regulations approval.

Planning Inspectorate Wales are responsible for deciding on applications made under section 38 on common land and town or village greens. The Welsh Ministers generally have to consider any restricted works on registered common land.

Restricted works are those which:

  • prevent or impede access to, or over, the land
  • include erecting fencing, constructing buildings, digging ditches
  • also include the resurfacing of land with tarmac and similar materials.

Consent for the exchange and deregistration of registered common land

Under section 16 of the Commons Act 2006, 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, they must register ‘replacement land’ as common land or green at the same time. If the release land is smaller than 200 square metres, a proposal to register replacement land may (but need not) be included. Further information is available from the Planning Inspectorate Wales pages on the Planning Portal.

Determination of Applications

Details of determinations made under section 38 may be found by accessing the link 'Determination of Applications'.

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