Challenge to New Road Across Common, Suffolk

We were instructed by the Open Spaces Society in a challenge to the decision to allow construction of a road across a strip of common land at Barking Tye, Suffolk.  Although the claim was unsuccessful, the Judge accepted the Society’s main argument that applicants should be required by the Government’s policy for common land consents to fully assess alternatives to developing on common land before permission under section 38 of the Commons Act 2006 is granted.  The Judge, however, found that in the particular circumstances of this case, the Inspector was justified in departing from policy and not requiring such assessment.

The applicant had applied to the Secretary of State for consent to construct a vehicular access to a proposed new 9-house development, for which planning permission had been granted by Mid Suffolk District Council in January 2018. The road would cross a narrow strip of Barking Tye common. As part of the planning application, the developer had proposed to construct the access across the common land, laying tarmacadam over a small area of roughly 70m² near the far north-eastern end of the common. The developer sought permission under section 38 of the Commons Act 2006, which requires consent from the Secretary of State to carry out ‘restricted works’ (including laying tarmacadam) on common land; the Open Spaces Society objected to the application on the basis that the applicant had not shown that it was infeasible to implement (1) an alternative off the common, or (2) an alternative in which suitable replacement land was provided in exchange.  Consent was granted in January 2022.

On behalf of the Society, we initiated judicial review proceedings challenging the decision, on the basis that the Inspector misinterpreted the Common Land Consents Policy, by failing to place the burden on the applicant to robustly explore alternatives to carrying out restricted works on common land, or to instead apply under 16 of the Commons Act – which involves deregistering this area of common but offering replacement land so that the extent of the common is undiminished.

The Judge held that the Policy does place a burden on applicants to consider such alternatives, and that Inspectors must have regard to this Policy as a material consideration and provide reasoning for any departure from it. However, the Judge held that in this case the Inspector had provided sufficient reasons for departing from the policy given the particular circumstances of the case, the small area affected at the north-eastern extremity of the common, and the judgment that the development would not have any adverse effect on the interests of common-rights holders and no significant adverse effect on the interests of the neighbourhood.

Although the claim was unsuccessful on its facts, the Judge rejected the Secretary of State’s submissions that the policy was merely general and advisory and that alternatives might be explored or not depending on the circumstances of an individual case. The Judgment confirms what the Society sought to establish: namely the Common Land Consents Policy has ‘teeth’ and should be read to ensure the protection of commons from avoidable loss to development. In most cases, Section 38 applicants wishing to carry out restricted works on common land must themselves do the work of robustly considering whether there is a viable alternative to using common land without offering a replacement, and Inspectors should expect to see this consideration and the evidence supporting the rejection of any alternatives.