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.
What is common land?
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:
- Grazing livestock
- Turbary (cutting turf or peat)
- Estovers (taking wood for fuel, bedding or minor repairs)
- Pannage (allowing pigs to forage for acorns)
In addition to these rights, the public generally has a right of access over registered common land.
Why does common land matter?
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:
- Local opposition and reputational impact, given the cultural and community value of common land
- Costly redesigns as well as the need for alternative routes or additional land to be factored in
- Consent risk, as section 38 applications require a merits‑based assessment of the varied interests of commoners, neighbours and the wider public interest in nature conservation
Case Study: Snow Capel, Gloucestershire
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.
Identifying common land
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.
Practical strategies for landowners and land agents
- Identify potential issues early on: check the commons registers prior to finalising access strategies and wider development plans
- Design for commoners and the public: once identified, factor in the continuity of any existing local use or access, as well as any impacts the development is likely to have on common land
- Negotiate and engage: liaise with known commoners and concerned open spaces organisations to address concerns regarding the impact of the proposed development
- Choose the right consent route: the ‘section 38’ path may suffice for low-impact works. However, the ‘section 16’ route (involving the deregistration and exchange of land) may be more appropriate for more substantial interventions.
Summary
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.
