Alec Samuels examines the arguments for and against fencing common land
The common may not be fenced without the consent of the secretary of state (Commons Act 2006 (CA 2006), s 38). Other consents may be required from eg, the owner and planning authority. The prohibition covers “restricted works” which prevent or impede access, such as fencing or ditches. Resurfacing with certain material is also prohibited, except for repair/maintenance of an existing surface.
Works for the installation of electronic communications apparatus for the purposes of an electronic communications code network are permitted under s 38(b)(d) (above ground masts would require planning permission).
Land is common land if it is registered or otherwise protected, eg, under a scheme of management under the Metropolitan Commons Act 1866 or the Commons Act 1899.
The New Forest is governed by its own traditional and statutory regime, responsibility being vested in the Verderers and the New Forest National Park Authority. Ponies stray onto roads and into villages. The A31 and the A35 are busy roads traversing the New Forest, so fences and ditches are necessary for safety reasons.
The
