1 Session 5 Taking action against unlawful works on commons and greens Kate Ashbrook And Nicola Hodgson

2 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

3 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

4 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

5 Taking action Defra/PINS view Work 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.   Summary in OSS information sheet

6 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: rt_forms_id=338 rt_forms_id=338

7 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

8 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 Laying-an-Information-how-to-prosecute-someone-in-a- magistrates-court-May pdf Laying-an-Information-how-to-prosecute-someone-in-a- magistrates-court-May pdf

9 Taking action Who can take action? Owners Works undertaken without the owner’s consent are likely to be trespass, whether section 38 consent has been obtained or not They may have carried out the work themselves Local authorities Government’s view is additional guidance and clarity of s38/s41 ensures local authorities are fully aware of their responsibilities and powers Helps to inform them of their options At the very least, an authority should write explaining the legislation

10 Taking action Who can take action? Local Councillors Lobby and explain remedies available to their authority Commons Association/Commons Councils Common law – abatement Section 30 Commons Act 1876 Local Access Forums Defra’s guidance 2007 – forums are asked to consider advising local authorities about use of enforcement powers The forum’s objective should be to help safeguard and promote freedom of access over common land