Common land: conclusions justify failure to comply with Common Land Consents Policy

A decision to grant consent under section 38 of the Commons Act 2006 for the construction of a short length of road at the north-eastern extremity of common land at Barking Tye, Suffolk has been upheld despite the inspector’s failure to comply with the Common Land Consents Policy in The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs and others [2022] EWHC 3044 (Admin). The common is a relatively narrow verge of land on both sides of the B1078 Barking Road at the relevant point. The proposed road – of less than 70 sq m in size – was to create access from the B1078 to the site of a new housing development. The claimant, supported by Natural England, contended that the inspector was wrong to grant consent, submitting that it was for the applicant developer to demonstrate there was a need for the access road to be constructed on the common. The applicant had failed to show that there was no satisfactory alternative route off the common or that there was no or no suitable replacement land which could have been provided in exchange for that use for the road. There was an existing vehicular access to the east of the proposed access, which was not on the common. The applicant argued that it was not realistic to consider alternatives because it was the scheme for which outline planning permission had been granted and the area was so small that it was not necessary to offer replacement land in respect of it. Section 38 of the 2006 Act prohibits certain works, including resurfacing works, to common land without consent and requires the authority determining such an application to have regard to the interests of those occupying or having rights in relation to the common; the interests of the neighbourhood; the public interest and any other relevant matter. The Common Land Consents Policy aims to safeguard commons for current and future generations to use and enjoy; ensure that its special qualities – its open and unenclosed nature – are protected; and to improve the contribution of common land to enhancing biodiversity and conserving wildlife. It requires an applicant to consider alternatives to any application it proposes and to persuade an inspector that alternatives have been properly considered and rejected. In public law a policy must generally be followed unless there are good grounds for not doing so Mandalia v Secretary of State for the Home Department [2015] UKSC 59. The inspector considered and rejected both alternative proposals but he failed to require the applicant to properly address the alternatives and explain how they were not available or appropriate. However, in the court’s view, the inspector’s conclusions – that the proposal would have minimal effect on the interests of persons having rights in relation to the land; that it would be neither detrimental to the interests of the neighbourhood nor cause significant harm to historical, archaeological, landscape or nature conservation interests or, in practical terms, to public access – justified a departure from the policy which meant that he did not have to explore the alternatives as would ordinarily be required. Louise Clark is a property law consultant and mediator