Commons Act 2006

38 Prohibition on works without consent E+W

(1) A person may not, except with the consent of the appropriate national authority, carry out any restricted works on land to which this section applies.

(2) In subsection (1) “restricted works” are—

(a) works which have the effect of preventing or impeding access to or over any land to which this section applies;

(b) works for the resurfacing of land.

(3) The reference to works in subsection (2)(a) includes in particular—

(a) the erection of fencing;

(b) the construction of buildings and other structures;

(c) the digging of ditches and trenches and the building of embankments.

(4) For the purposes of subsection (2)(b) works are for the resurfacing of land if they consist of the laying of concrete, tarmacadam, coated roadstone or similar material on the land (but not if they consist only of the repair of an existing surface of the land made of such material).

(5) This section applies to—

(a) any land registered as common land;

(b) land not so registered which is—

(i) regulated by an Act made under the Commons Act 1876 (c. 56) confirming a provisional order of the Inclosure Commissioners; or

(ii) subject to a scheme under the Metropolitan Commons Act 1866 (c. 122) or the Commons Act 1899 (c. 30);

(c) land not falling within paragraph (a) or (b) which is in the New Forest and is subject to rights of common.

(6) The prohibition in subsection (1) does not apply to—

(a) works on any land where those works, or works of a description which includes those works, are carried out under a power conferred in relation to that particular land by or under any enactment;

(b) works on any land where the works are carried out under a power conferred by or under any enactment applying to common land;

(c) works authorised under a scheme under the Metropolitan Commons Act 1866 or the Commons Act 1899 without any requirement for any person to consent to the works;

(d) works for the installation of electronic communications apparatus for the purposes of an electronic communications code network.

(7) In subsection (6)(a) the reference to an enactment does not include Part 2 of this Act.

(8) For the purposes of subsection (6)(b), an enactment applies to common land if it is expressed to apply (generally) to—

(a) registered common land;

(b) common land; or

(c) any common or commons, commonable land, land subject to inclosure under any enactment or other land of a similar description.

(9) Subject to the following provisions of this Part, consent given to works under subsection (1) of this section constitutes consent for the purposes of that subsection only.

Modifications etc. (not altering text)

C1 S. 38 excluded (1.10.2007 for E.) by 1971 c. vi, s. 23(2C) (as inserted by Commons Act 2006 (c. 26), ss. 44, 56, Sch. 4 para. 4(3); S.I. 2007/2584, art. 2)

C2 S. 38 restricted (E.) (1.10.2007) by The Works on Common Land (Exemptions) (England) Order 2007 (S.I. 2007/2587), art. 2, Sch. 1 (subject to arts. 3, 4)

C3 S. 38 excluded by 1971 c. vi s. 23(2C) (as inserted (1.10.2007 for E., 1.4.2012 for W.) by Commons Act 2006 (c. 26), s. 56, Sch. 4 para. 4(3) (with s. 60); S.I. 2007/2584, art. 2(d)(i); S.I. 2012/739, art. 2(h)(i) (with art. 4(5)))

C4 S. 38(1) modified (coming into force in accordance with s. 13 of the amending Act) by Monken Hadley Common Act 2022 (c. ii), s. 7(3) (with s. 8(3))

Commencement Information

I1 S. 38 not in force at Royal Assent see s. 56(1); s. 38 in force for E. at 1.10.2007 by S.I. 2007/2584, art. 2 (with art. 3)

I2 S. 38 in force at 1.4.2012 for W. by S.I. 2012/739, art. 2(c) (with art. 4(1)(3))