Common land and village greens in planning

 

Common land and town or village greens are exactly the sort of constraints that can be missed during an early planning appraisal. The land may look like an ordinary field, verge, track or open green, but separate commons legislation can apply alongside the planning system.

The important practical point is that planning permission may not be the only consent you need. Certain works on registered common land require separate consent under section 38 of the Commons Act 2006, while registered town and village greens have their own statutory protection.

This page explains the difference between common land and village greens, how section 38 works, and why neither should be confused with Local Green Space.

 

What is common land?

 

In England, common land is generally land recorded in the commons registers maintained by commons registration authorities. It is often privately owned, despite the name, and may be subject to rights held by other people — traditionally rights such as grazing animals, taking certain natural products or other rights of common.

“Common” therefore does not mean that everybody owns the land or that it is automatically a public park.

Ownership, rights of common, public access and planning status are separate questions. A landowner can own registered common land while still being subject to statutory restrictions on particular works.

 

What is a town or village green?

 

A registered town or village green is land entered in the register as a green. The modern registration regime includes applications under section 15 of the Commons Act 2006 based on local inhabitants using land “as of right” for lawful sports and pastimes for at least 20 years, subject to the detailed statutory rules.

Town and village greens have strong statutory protection against encroachment and interference. The principal protections include section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876.

The registration system also interacts with planning. Section 15C and Schedule 1A to the 2006 Act contain trigger events connected with the development system which can exclude the right to apply to register a new green while the relevant trigger remains in place.

 

What consent is needed for works on common land?

 

Section 38 of the Commons Act 2006 controls certain “restricted works” on registered common land. Consent is administered on behalf of the Secretary of State through the Planning Inspectorate.

Restricted works include works which prevent or impede access to the land, such as new fencing, buildings, structures, ditches, trenches or embankments, together with specified surfacing works.

Examples which may therefore need section 38 consent include:

• new fencing or gates which materially restrict access
• buildings or other structures
• ditches, trenches or embankments
• new hard surfacing or resurfacing falling within the statutory control
• infrastructure works which occupy or obstruct part of the common

The detail is fact-sensitive. The Planning Inspectorate publishes separate guidance on works which do and do not require section 38 consent.

 

Planning permission and section 38 consent are separate

 

This is the point developers most need to remember.

A proposal may require planning permission because it is development under the Town and Country Planning Act 1990. The same physical works may also require section 38 consent because they are restricted works on registered common land.

Obtaining planning permission does not, by itself, grant section 38 consent. Equally, section 38 consent does not replace any planning permission, listed building consent, highways approval or other authorisation that the works require.

If the works are substantial or fundamentally inconsistent with the continued status and use of the common, the Planning Inspectorate’s guidance explains that a different route under section 16 — involving deregistration and potentially replacement land — may be more appropriate than trying to treat the project as a simple section 38 works application.

 

Does section 38 apply to village greens?

 

Not normally.

Planning Inspectorate guidance explains that section 38 generally applies to registered common land and does not generally apply to registered town or village greens. There are exceptions where a green is subject to a scheme or local Act which brings it within the section 38 regime.

That does not mean village greens are easier to develop. Their separate statutory protections are extremely important and need to be checked before any works, enclosure or development is proposed.

 

Local Green Space, village green and common land compared

 

A single piece of land can carry more than one status. For example, registered common land could also be within a National Landscape, SSSI or Local Green Space designation. Each layer must be checked separately.

 

Can common land be developed?

 

There is no sensible one-word answer.

From a planning perspective, the proposal is assessed against the development plan and national policy like other development, subject to whatever additional landscape, ecological, heritage or open-space policies apply. But the commons legislation can create a separate obstacle even where the planning merits are acceptable.

A scheme may need to demonstrate why works are necessary, what effect they would have on rights, public access, the traditional use of the common, nature conservation and landscape, and whether replacement land or a different route is required.

That is why common-land status should be identified at site-acquisition and design stage, not after a planning permission has already been negotiated.

 

How do you check whether land is registered?

 

Start with the commons registration authority, normally the county council, unitary authority, metropolitan district or London borough responsible for the statutory register. The register and register map are the primary evidence of registration.

Online mapping and title searches are useful screening tools but should not be treated as a substitute for the statutory register where the exact status or boundary matters.

For a development site, also check:

• the register unit and map boundary
• ownership and any registered rights of common
• public rights of way and access rights
• any existing scheme, local Act or management arrangement
• planning and environmental designations affecting the same land
• whether the proposed works fall within section 38 or require a different commons route

 

Village green registration and development proposals

 

Applications to register land as a new town or village green can have major consequences for development. However, Parliament has deliberately linked the registration process with the planning system through the trigger-event provisions in the Commons Act 2006.

Where a statutory trigger event has occurred — for example certain steps in the allocation or planning process — the right to apply under section 15 may be excluded for the relevant period. A terminating event can later revive that ability.

The precise trigger depends on the planning route and the timing. If a live development site is threatened with a new village-green claim, the Commons Act provisions and the site’s planning history need to be checked together rather than assuming 20 years’ recreational use automatically decides the position.

 

Practical checks before buying or developing land

 

1. Check the commons register early rather than relying only on the Land Registry title
2. Confirm whether the land is common land or a town/village green because the statutory controls differ
3. Map the exact development footprint against the registered boundary
4. Identify any rights of common and public-access issues
5. Decide whether section 38 consent is required and build its timetable into the project
6. Consider whether section 16 is the more appropriate route for substantial or incompatible works
7. Check overlapping planning constraints including Local Green Space, landscape designations, ecology and heritage

 

Key sources

 

• Planning Inspectorate: Common land guidance
• Guidance Sheet 1a: consent to construct works on common land
• Guidance Sheet 1b: works that do not need section 38 consent
• Government guidance: town and village green registration
• Commons Act 2006, section 38

Conservation, Heritage & Protected Sites

 

Common Land Page Added: 28th August 2026