DEFRA has published guidance setting out its policy in relation to the determination of applications to the Secretary of State for consent under section 38 of the Commons Act 2006 to construct restricted works on common land in England, and under section 16(1) of the 2006 Act to deregister and exchange common land in England.
The guidance is published on the DEFRA website at:
The guidance explains the Secretary of State's view, in relation to the erection of wind farms on registered common land, that:
“4.13 The Secretary of State wishes to promote sustainable energy generation in an appropriate setting, but equally, his policy is to ensure that the stock of commons is not diminished, that works on common land must maintain or improve the condition of the common, and the use must be consistent with its status as common land. To balance these issues our expectation is that applications for such infrastructure projects on common land are more likely to be successful under section 16 of the Act, so that an exchange of land is proposed and can be taken into account. An application for consent to such works under section 38 will rarely be granted unless there are convincing reasons why an application under section 16 cannot be pursued.”