Guidance

Common Land Guidance Sheet 2a

Updated 14 September 2018

Applies to England and Wales

Special consent provisions: National Trust Commons

Commons owned by the National Trust are subject to laws which are different from section 38 of the Commons Act 2006. National Trust land is subject to its own Acts. Under section 29 of the National Trust Act 1907, the Trust must keep its commons “unenclosed and unbuilt on for the recreation and enjoyment of the public”. That requirement is qualified by powers given in section 29 itself, and in later provisions, including section 23 of the National Trust Act 1971. The National Trust Acts can be read at the National Trust Website.

The definition of common land for sections 23 and 29 is the same as for section 38. Section 23 therefore applies to any National Trust owned land which is registered as common land under the Commons Registration Act 1965 or the Commons Act 2006 (legislation.gov.uk). It also applies to any National Trust land that is not registered as common land which is regulated by a Provisional Order Confirmation Act under the Commons Act 1876, or which is subject to a scheme of management under the Metropolitan Commons Act 1866 or Commons Act 1899. Section 23 does not generally apply to registered town or village greens (see Guidance Sheet 2b for more information on town or village greens), but it may occasionally do so if a green is subject to a scheme or Act. Section 23 may also apply in certain circumstances to unregistered land in the New Forest which is subject to rights of common.

Section 29 permits some works on Trust land without the need for our consent, but works carried out under section 23 that prevent or impede access can only be carried out if our consent is obtained under section 23(2). Annex A to this guidance sheet gives the Trust’s view of which works fall into which category. In addition, none of the works and processes set out in Guidance Sheet 1b (as not needing section 38 consent) prevents or impedes access, so (in so far as they are not already authorised by section 29) none needs section 23(2) consent provided they fall within section 23(1) in the first place.

NB: Neither the Annex A list nor the Guidance Sheet 1b list is an authoritative statement of the law. In addition, you should check carefully that any works you propose to carry out are expressly authorised by the National Trust Acts.

How do I know whether to apply under section 23?

If you are considering works on National Trust common land they will fall into one of three main categories:

A. “Desirable” works (see previous section) under section 23 which will need consent under section 23(2) if they prevent or impede access (see list at Annex A, Section A). Such works may include in particular:

(a) providing or arranging for the provision of facilities and services for the enjoyment or convenience of the public, including meals and refreshments, parking places for vehicles, shelters and lavatory accommodation;

(b) erecting buildings and carrying out works.

B. Works which are either (i) expressly authorised by section 29, or (ii) allowed under section 23(1) and which do not prevent or impede access (see list at Annex A, Section B).

In addition, none of the works and processes listed in Guidance Sheet 1b needs consent although, as the guidance points out, they may need permission under other controls e.g. planning permission.

C. It may also be open to the Trust to apply under the section 16 deregistration and exchange provisions (see separate guidance on making such an application), where works are proposed on registered common land, or town or village green, that do not fall within the category of works permitted by section 29 or section 23(1) or where consent is unlikely to be granted under section 23(2).

The list of works that are exempt from section 38 (see Guidance Sheet 1c) does not apply to National Trust commons.

The process to be followed if you are considering carrying out works on a National Trust common is summarised in the flowchart at Annex B.

Making an application

Guidance Sheet 1a 7 to 32 give further guidance on applying for consent to carry out works on common land. The guidance applies to both National Trust and non-National Trust commons. However, when applying for consent on National Trust land you will also need to provide a letter from the National Trust confirming that the works are “desirable” under section 23(1) of the National Trust Act 1971.

Annex A

Works on National Trust common land for which our consent will/will not be sought

A - Works where the Trust will seek our consent

1. Permanent fencing or barriers of any sort, including safety barriers and barriers* for keeping vehicles off a common
2. Fencing, permanent or otherwise, associated with stock grazing unless it is clearly linked to works set out in B19
3. Any other temporary fencing or barrier not associated with B19
4. Construction of cattle grids
5. Construction of buildings intended to help the public to enjoy the property (e.g. shelters and refreshment and toilet facilities) but not including sheds for the storage of tools and materials
6. Creation of new permanent parking areas and extensions to existing permanent parking areas
7. Any other buildings or works which prevents or impedes access to a common and is not mentioned above or in column B of this table

*This relates only to barriers situated on the common itself and includes banks and ditches, dragon’s teeth and the laying of large stones

B - Works where the Trust will not seek our consent

1. Erection of sheds for the storage of tools and materials*
2. Planting of trees
3. Drainage work
4. Levelling work
5. Maintenance work and repairs
6. Resurfacing work using same materials as used previously
7. Construction of gates and stiles into existing boundaries
8. Creation of ponds or other bodies of water
9. Dredging and clearance of ponds or other bodies of water
10. Erection of signs and notice boards
11. Management of vegetation by mechanical means
12. Improvements (not involving an extension to the area) to existing permanent parking areas
13. Resurfacing (with the same material) of paths and tracks
14. Resurfacing (with the same material or replacement material more in keeping with the character of the common) of existing parking areas
15. Movement of soil onto the common
16. Widening of paths and tracks
17. Creation of new paths, tracks and access ways
18. Setting out areas for sports and games
19. Temporary fencing or barriers associated with:

• planting, draining or levelling
• alterations or improvements,
• protecting or renovating turf
• protecting trees and plantations

*This does not extend to workshops or offices or to storage of mechanical vehicles

Annex B - Is a separate attachment to this guide