THE OPEN SPACES SOCIETY v SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS & Ors

For consent to works on registered common land, the applicant must properly explore potential alternatives and explain why they have been rejected. The intensity of that exercise depends on the circumstances, but an inspector departing from that policy requirement should explain why.

Permanent works which do not maintain or improve the common require a wider public benefit and must not have a significant impact. A paved vehicular way may be permissible where it is the only practical access, but the policy does not create a freestanding exceptional-circumstances test. Planning permission does not replace consent under the Commons Act 2006. An inspector may depart from policy where the decision gives sufficient reasons grounded in the particular facts.

The claimant sought judicial review of the Secretary of State’s decision to grant consent under section 38 of the Commons Act 2006 for a short access road across registered common land at Barking Tye, Suffolk. The road would serve a nine-dwelling development for which outline planning permission had been granted.

The claimant argued that the inspector had wrongly placed the burden on the objector and had failed to require the developer to investigate two alternatives: access off the common and an exchange of land under section 16. The central issues were the interpretation of the Secretary of State’s Common Land Consents Policy, the relationship between sections 16 and 38, the role of alternatives, and whether the inspector’s departure from the policy was lawful.

1. Claim dismissed. The inspector’s decision to grant section 38 consent stood.
2. Paragraph 4.3 of the Common Land Consents Policy required an applicant to adduce evidence of the alternatives considered and generally to explain why rejected alternatives were unavailable or inappropriate. The intensity of exploration depended on the circumstances. An inspector could depart from that requirement, but should explain the departure.
3. A section 16 application was not legally required merely because works under section 38 were proposed. Nevertheless, a replacement-land alternative could be material and, in an appropriate case, had to be considered and addressed.
4. The policy’s approach to permanent works was that they should be avoided where possible unless they maintained or improved the common. If they did not, they required a wider public benefit and their impact had to be insignificant in the relevant sense. A wider public benefit could not simply be weighed against permanent works having a significant or lasting adverse impact.
5. Paragraph 5.9 recognised that a paved vehicular way could remain consistent with common land status and could in some circumstances be the only practical means of access. It did not impose a separate high-threshold test requiring proof that the road was needed. It reinforced the need to explore alternatives.
6. The inspector had not properly required the developer to investigate the off-common and replacement alternatives. His reasons concerning the existing track and the limited area of common land were therefore inadequate in that respect. However, his overall planning judgment was that the proposal affected a small peripheral area and caused minimal impact. Having worked through the statutory factors in section 39(1)(a)–(c), he had sufficient reasons to depart from the policy in the special circumstances. Planning permission and section 38 consent were conceptually and legally separate, and the former did not dispense with the latter.

The inspector’s conclusion that there was no good reason to withhold consent was open to him and was not unlawful.