Common land is a frequently overlooked constraint in the early stages of development due diligence. Yet, failure to identify it can delay, complicate, or even derail a project entirely. Understanding its legal status, protections, and practical implications is essential for landowners, developers and promoters.
Common land in England and Wales is privately owned land over which third parties – known as commoners – hold long‑established legal rights to use the land or to remove certain resources from it. This may include:
In addition to these rights, the public generally has a right of access over registered common land.
Despite its significance, common land is often missed during initial site investigations. However, its presence introduces strict statutory controls which do not fall away simply because planning permission has been granted. Failure to obtain additional approval under the Commons Act 2006 can lead to enforcement action in the county court – action that any person may initiate, irrespective of their legal interest in the land.
If overlooked, common land can create real risks to a project including:
A recent example illustrates these challenges. The Snow Capel scheme south of Gloucester was significantly delayed when Gloucestershire County Council’s planning inspectorate refused consent for access works across Sneedham’s Green, a registered common. The refusal was based on a failure to provide suitable replacement land, as well as concerns regarding the impact on existing grazing rights in the absence of protective measures such as cattle grids.
The result: a delay of at least a year – demonstrating how failure to address common land issues early can have material consequences.
The legal position with respect to common land is recorded on commons registers, which are kept by the local commons registration authority; the UK Government’s database of registered common land and Natural England’s Access to Evidence viewer also serve as helpful tools.
On-site inspections remain essential, helping reveal active common rights (e.g. grazing or public access routes). A review of title documents may also disclose manorial rights or other potentially adverse entries.
Unaddressed questions around common land can introduce delays, costs and objections that are entirely avoidable with early due diligence and meaningful engagement. By anticipating issues, preparing mitigation strategies and selecting the correct consent pathway, landowners and developers can significantly reduce the risk of schemes being delayed or frustrated.
