Transcript Overview - Open Spaces Society

Session 5
Taking action against unlawful works
on commons and greens
Kate Ashbrook
And Nicola Hodgson
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Taking action
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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
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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
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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 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.
 www.justice.gov.uk/about/alternativedisputeresolution.htm
 Summary in OSS information sheet
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Taking action: Process
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Can be long and expensive
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Essential to have strong evidence
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Witnesses, documents, maps, photographs
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You may be personally liable for the costs of the action; any
award of costs is at the discretion of the courts
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Read court guidance notes:
http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?cou
rt_forms_id=338
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Taking action: Process(2)
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Complete a Part 7 claim form (N1), available on line or from
your local county court
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OSS information sheet at Appendix A has an example
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Take form to court with fee, with a copy for each defendant
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Taking action
Village Green
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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/C12Laying-an-Information-how-to-prosecute-someone-in-amagistrates-court-May-20131.pdf
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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
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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
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