Commoners' Corner No.8

This article was prepared for the January Newsletter 1998 but remained unpublished since the Society ceased publishing newsletters and issued more frequent "Stop Press" sheets. The headings of a further 4 articles had been prepared and contents sketched out. These are now been incorporated into

It has been pointed out that parts of this article are now a 'historic document' since the Countryside & Rights of Way Act 2000 (creating the 'right to roam'), and the Commons Act 2006 (replacing s.194) have been passed by Parliament since this article was written in 1998. Names of government departments have changed in the meantime - sometimes more than once. For a more up-to-date explanation of access and illegal works on commons please see:

Yateley Common FAQs.

Common Land and Planning Law

Why is it possible for a developer to get planning permission for illegal buildings on common land? Many people are aware that it is an offence to erect a fence on common land. The Law of Property Act 1925 makes it an offence to construct any works and erections on common land not having the permission of the Secretary of State for the Environment. It is important to know that the LPA 1925 was originally administered by the Ministry of Agriculture before that ministry was amalgamated into the Department of the Environment.

Planning Laws were originally administered by the Ministry of Housing, now (1997) also amalgamated into the Department of the Environment. So why is is possible for the Secretary of State for the Environment to grant planning permission for, say, the fenced Sunday Market on Blackbushe Airport, also on registered common land? Logically any layman might think that the Secretary of State (with his ex-Ministry of Housing hat on) should refuse planning permission for any structure that he knows (with his ex-Ministry of Agriculture hat on) will be illegal, and he would have to refuse, if that same application would come before him for permission under laws relating to common land.

I don't have any logical answer to this, and I have been writing letters and putting this point to planning inquiries for 20 years. The Department of the Environment says that it has no powers to adjudicate on works and erections on common land unless presented as formal application pursuant to the relevant laws. This may make sense to lawyers but not to us commoners in either meaning of the word.

As a result of this legal sleight of hand there are now many works and erections on our registered common land in Yateley. Major examples are the fencing, and even the tar macadamed surface, of the Sunday Market which does have planning permission granted on appeal by the Secretary of State for the Environment. Although legal in planning terms the Sunday Market remains illegal in terms of the laws relating to common land since the works and erections do not have the necessary permissions (to site those works and erections on common land) from the same Secretary of State who granted the planning permissions.

Another "illegal" works and erection on the registered common land is the Go Kart track. This activity had been started many years ago within the part of the common owned by the airport, the owners of which then denied it was common. Eventually planning permission was sought, denied by Hart District Council, but granted on appeal. Richard Johnston represented the Society at this appeal. I appeared as a commoner pointing out the rather preposterous state of current law, and the absurdity of the Secretary of State of the Environment granting planning permission for development knowing that, if the same development was placed before him as a s.194 application, he would refuse it. Nevertheless planning permission was granted.

Obviously a developer can build anything on common land by the simple expedient of applying for planning permission -- but NOT making a s.194 application to construct a work or erection on common land. Having built on common land the developer might end up in the County Court. That in itself is very unlikely, and even if he did end up in court it is unlikely the court would order the removal of the works and erections. The risks to the developer are thus absolutely minimal. Let me explain....

S.194 (para 1) of the Law of property Act 1925 states that the erection of any building or fence, or the construction of any other work, whereby access to land to which this section applies is prevented or impeded, shall be unlawful unless the consent of the Secretary of State is obtained. Paragraph 2 enables certain persons and authorities to apply to the County Court to make an order for the removal of the work, and the restoration of the land to the condition in which it was before the work was erected or constructed.

The difficulties in obtaining an order to remove the works and erections are twofold. Firstly; although the works are not lawful, they are not criminal in the sense that the police can be called to arrest the developer resulting, we might hope, in a large fine or even jail, and the restoration of the common land. Secondly; those who may make the application in the County Court are unlikely to do so. S.194 (2) allows the owner of the soil, the County Council, the District Council and any commoner to make the application for removal of the works.

The owner of the soil is unlikely to make the application for removal of the works: he may have constructed the works himself or is likely to be enjoying income from the works. The District Council, as Local Planning Authority, may have granted planning permission for the works and thus feel constrained from taking legal action. The District Council and the County Council may be the owners of the common and may feels that the works are in the public interest -- even though not within the strict sense of public interest with which the Secretary of State must comply when determining a s.194 application. The County Council may not take legal action strictly as a result of not having a statutory duty to do so, considering that public money spent on the court case may not be recouped by a satisfactory order to remove the works. Some years ago Hampshire County Council gave this reason to me, having won such a pyrrhic victory in the 1960s. The fourth group enabled to take action is any other person interested in the common. Although not wishing to abandon their common the commoners may be constrained by the same consideration as the statutory bodies that a satisfactory order for removal may not be made. More likely nowadays a Commoner might be constrained by financial considerations when confronting large commercial organisations.

I must point out that the Secretary of State has no powers to institute proceedings against any person who would has constructed anything on common land without his consent.

Currently therefore it is possible to obtain planning permission for works and erections on commons, making them legal in planning law, yet still illegal in commons law. The only persons enabled by current commons law to take legal action against these illegal works and erections, in many instances, are unlikely to do so. Since it is apparent that the current law does not work in the way Parliament originally intended, and numbers of works and erections are extant on Yateley commons without the consent of the Secretary of State, it appears to me that the law should be changed to make it a criminal offence to construct anything on a common with first obtaining the consent of the Secretary of State.

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