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Session 5

Taking action against unlawful works on commons and greens

Kate AshbrookAnd Nicola Hodgson

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Taking action

Section 41 Commons Act 2006 In force since 1 October 2007 Where restricted works are carried out without

consent from Secretary of State under section 38 Commons Act 2006, any person can make an application to the county court

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Taking action

The court can order

Removal of the works and restoration of the land or

Where consent has been given, but the works have not been carried out in accordance with its terms, can specify how the works are to be carried out

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Taking action

Application to other Acts

National Trust land: where consent is required under section 23 National Trust Act 1971

Greater London: where works require consent under article 12 of the Greater London Parks and Open Spaces Order 1967

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Taking action

Defra/PINS viewWork constructed in ignorance of the controls may be rectified by making a retrospective application. There is no guarantee that a retrospective application will be successful and, if it is not, applicants may well need to dismantle unlawful works or face a court action.Consider alternative resolution procedures: Mediation through an independent party Pre-action procedures as recommended by the Ministry of

Justice. Failure to seek a resolution can result in costs being awarded against you, even if you bring a successful action.

www.justice.gov.uk/about/alternativedisputeresolution.htm

Summary in OSS information sheet

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Taking action: Process

Can be long and expensive

Essential to have strong evidence

Witnesses, documents, maps, photographs

You may be personally liable for the costs of the action; any award of costs is at the discretion of the courts

Read court guidance notes: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=338

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Taking action: Process(2)

Complete a Part 7 claim form (N1), available on line or from your local county court

OSS information sheet at Appendix A has an example

Take form to court with fee, with a copy for each defendant

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Taking action

Village Green

No encroachment works for the better enjoyment of the green.

No injury or damage to the green S29 Commons Act 1876, S12 Inclosure Act 1857 Laying an information in the magistrate court

http://www.oss.org.uk/wp-content/uploads/2009/02/C12-Laying-an-Information-how-to-prosecute-someone-in-a-magistrates-court-May-20131.pdf

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Taking action

Who can take action?

OwnersWorks undertaken without the owner’s consent are likely to be trespass, whether section 38 consent has been obtained or notThey may have carried out the work themselvesLocal authoritiesGovernment’s view is additional guidance and clarity of s38/s41 ensures local authorities are fully aware of their responsibilities and powersHelps to inform them of their optionsAt the very least, an authority should write explaining the legislation

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Taking action

Who can take action?Local CouncillorsLobby and explain remedies available to their authorityCommons Association/Commons CouncilsCommon law – abatementSection 30 Commons Act 1876Local Access ForumsDefra’s guidance 2007 – forums are asked to consider advising local authorities about use of enforcement powersThe forum’s objective should be to help safeguard and promote freedom of access over common land