PannageMan

PannageMan

About this blog

An occasional blog about commons — and just possibly even more occasionally about village greens and rights of way. New posts will be tweeted at @PannageMan.

Cycling on common land

Common landPosted by Hugh Craddock Wed, July 05, 2017 11:49:20

Is there a right to cycle on common land?

Cycling across Coldham's Common, Cambridge.
There are plans to upgrade to a formal cycle track across the common.
© John Sutton cc-by-sa

On the face of it, the answer is 'no'. Leave aside public roads (including byways open to all traffic), restricted byways and public bridleways (which cyclists may use subject to an obligation to 'give way to pedestrians and persons on horseback': s.30 of the Countryside Act 1968, an obligation which is presumably integral to the offence of cycling 'without reasonable consideration for other persons using the road', under s.29 of the Road Traffic Act 1988). On the majority of commons to which there is a public right of access under Part I of the Countryside and Rights of Way Act 2000 (CROW), the right is, 'to enter and remain on any access land for the purposes of open-air recreation' (s.2(1)) subject to the general restrictions in Sch.2. And para.1(a) of Sch.2 sets out that the right does not entitle a person to be on land if that person, 'drives or rides any vehicle other than an invalid carriage'. Let's park for a moment whether a bicycle is truly a 'vehicle' for the purposes of Sch.2.

But CROW is not the only statutory right of access to common land. Prior to the enactment of the CROW rights, many commons — often estimated at one fifth — were subject to rights of access conferred under older laws, and these were preserved by s.15(1): the commons to which such pre-CROW rights apply are therefore often referred to as 's.15 commons'.

The most significant of these pre-CROW provisions are the 'rights of access for air and exercise' conferred by s.193 of the Law of Property Act 1925. It is a right exercisable on commons which are now, as a shorthand, described as 'urban commons', but strictly, commons which, immediately before local government reform in 1974, were in the (London) Metropolitan police district, a borough or an urban district, and commons to which s.193 has been applied by virtue of a deed (revocable or irrevocable) executed by the owner under subs.(2).

The 'rights of access for air and exercise', conferred by subs.(1), are not attributed to any particular class of user (such as persons on foot), but para.(c) of the proviso to subs.(1) says that, 'such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle', and indeed, subs.(4) makes it an offence to draw or drive any of these things on a s.193 common. Para.(a) of the proviso also renders the rights subject to any byelaws or other statutory controls on the common, and para.(b) enables the Secretary of State to impose 'limitations' on the exercise of the rights. (In the early days of s.193, it was the practice of the Minister to impose a raft of template restrictions, similar to the byelaws applicable to public open spaces.)

In the now widely known High Court case, R v Secretary Of State For Environment, ex parte Billson, Sullivan J (as he then was) found that 'Not merely do paragraphs (a) to (d) [of the proviso to subs.(1)] not specifically exclude horseriding, but paragraph (c), which excludes the drawing or driving of carriages, carts, et cetera, would be otiose (or addressed specifically to motor vehicles) if the public were not allowed to bring horses on to commons at all.' He concluded (para.88) that s.193 rights did extend to horse riding on s.193 commons, adding that, 'Riding would have been a normal way of taking air and exercise in 1925.' (In a wry comment on the judgment, Gadsden on Commons, edited by Edward Cousins, observes at para.9–09, fn.27, that: 'Perhaps it would be safer to say that it would have been normal for a certain section of society.') While it is possible to criticise the judge's reasoning (it might be said that para.(d) was there for reinforcement), the judgment has stood for nearly 20 years, was entirely consistent with the interpretation of s.193 expressed in many orders of limitation imposed by Ministers since 1925 (which regulate rather than prohibit the exercise of implied rights of access for horse riding), was consistent with one of the two opinions of the Divisional Court in the earlier case of Mienes v Stone, and simply makes sense — as Sullivan J noted (at para.90), 'If horseriding caused a problem on any particular common then limitations and conditions could be and have been imposed prohibiting horseriding under paragraph (b) of the proviso.'

Do the s.193 'rights of access for air and exercise' apply also to cycling? There has been no case directly turning on s.193, but the conventional view is that they do not. Classically, a bicycle is considered to be a carriage, and carriages are excluded by para.(c) of the proviso, as are 'other vehicle[s]'. Indeed, it is an offence to draw or drive these things on a common under subs.(4).

'Classically', because there have been a significant number of cases which have had to decide whether a bicycle is a carriage, or a vehicle, for the purposes of various enactments. See, for example, Corkery v Carpenter, as to which the headnote to the report ([1951] 1 KB 102) summarises: 'The word "carriage" in s.12 of the Licensing Act, 1872, by which "every person who … is drunk while in charge on any highway … of any carriage, horse, cattle, or steam engine … may be apprehended, and shall be liable to a penalty … or… to imprisonment …", includes a bicycle'. S.12 remains in force today, and is also the only criminal sanction against riding a horse while drunk. The case is notable that counsel for the defendant quoted to the court the words of Daisy Bell:

'It won't be a stylish marriage,

I can't afford a carriage,

But you'll look sweet upon the seat

Of a bicycle made for two.'

The report does not tell us whether counsel sung the words, but he did point out, to no avail, that the song recognises what the law perhaps does not — that a bicycle is not a carriage.

There is a splendid exploration of some of the authorities touching on whether bicycles are carriages or vehicles in Coates v Crown Prosecution Service, an appeal to the High Court by way of case stated, against a conviction for riding a Segway (remember those?) on the pavement, contrary to s.72 of the Highway Act 1835, which makes it an offence to: 'wilfully ride upon any footpath [i.e. pavement] or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or…wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway' — another venerable offence which remains in force, if widely ignored. There was some confusion in the information laid against Mr Coates as to whether he was accused of riding upon the footpath, or driving upon it, but the court found that, to the extent it was necessary to make a finding, he was guilty of both, a Segway being a carriage for the purposes of the provision and the defendant was 'driving' it — and 'riding' it too. The case cites the key precedents:

  • Taylor v Goodwin (1879), which found that riding a bicycle was 'driving any sort of carriage' for the purposes of s.78 of the Highway Act 1835, and so the appellant was guilty of furiously driving a carriage.

S.85(1) of the Local Government Act 1888 subsequently provided that: '… Bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highway Acts…' (just about the only provision of that Act which remains in force: the ellipses refer not to omitted text, but to the repealed words in the section, of which the words quoted are the only words which remain extant). In the late C19, the Highway Acts provided not just for the management of highways, but the regulation of traffic using them: legislation which (greatly evolved) is now found in the Road Traffic Act 1988 and the Road Traffic Regulation Act 1984.

  • R v Parker (1895), a cyclist was a person 'having the charge of any carriage or vehicle' under s.35 of the Offences against the Person Act 1861, and so guilty of causing bodily harm by furious driving.
  • Ellis v Nott-Bower (1896), a bicycle was a vehicle used for displaying advertisements contrary to s.12 of the Liverpool Corporation Act 1889.
  • • A cluster of toll road or turnpike cases, Williams v Ellis (1880), Cannan v Earl of Abingdon (1990), Simpson v Teignmouth and Shaldon Bridge Company (1903) and Smith v Kynnersley (1903), to determine whether tolls applicable to carriages could be applied to bicycles — only in Cannan was it so determined, but the courts were required to interpret detailed statutory rules in each case on what could be charged and how much. The Cyclists' Touring Club were behind some of these cases, arranging for all sorts of bicycles, including bath chairs and tricycles, to be driven over the ways concerned to test the legislation.
  • Pollard v Turner (1912), not cited in Coates v Crown Prosecution Service, but worth a mention, because the offence was committed by sending out on a bicycle a boy to sell bread, contrary to s.7 of the Bread Act 1836, which required 'any cart or other carriage' used for that purpose to carry scales.
  • Corkery v Carpenter (1951), see above

The difficulty is that all of the cases wrestle with language in legislation enacted in an era before cycling was popular, and bicycles were at best primitive and eccentric. Wikipedia refers to the 'second bicycle craze' in the 1890s (the first craze in the 1860s and 70s hardly meriting the description). It is all very well to look at s.72 of the Highway Act 1835, or s.12 of the Licensing Act 1872, and conclude that Parliament sought to regulate passage along roads by users who were not on foot (or if on foot, were in control of animals). In those circumstances, it was reasonable to assume that Parliament intended to apply the controls — on riding or driving on the pavement, or riding or driving while intoxicated — to a widespread class of users including those unanticipated at the time, viz, cyclists, as they applied to horse riders, carriage drivers and drovers.

But what of s.193 of the Law of Property Act 1925? S.193 originated as a backbench amendment to what became s.122 of the Law of Property Act 1922, later consolidated in the 1925 Act. It was enacted long after cycling had become commonplace, and over thirty years after s.85 (as enacted) of the the Local Government Act 1888 abolished local byelaws on cycling, declared cycles to be carriages for the purposes of the 'Highways Acts' (certainly including the Highway Act 1835), and required cyclists to carry lights at night and to ring a bell when passing other carriageway users. If horse riding was 'a normal way of taking air and exercise in 1925', so too was cycling. Yet s.193 has nothing to say on the subject. It can hardly be said that Parliament was not cognisant of cycling in 1922, yet it conferred a right of access which, as we have seen, extends to horse riding — and surely includes, for example, swimming (where possible), dog walking and pram pushing — and expressly restricted only the use of 'a carriage, cart, caravan, truck, or other vehicle', a class of things which, in this context, carries a strong implication of heavy conveyances which might injure the common and interfere with the exercise of the rights of access and rights of common. Even if 'other vehicle' might otherwise be said to include a bicycle, the euisdem generis rule of construction suggests that a cycle no more belongs in the class than a skateboard or a scooter. It is no argument to say that mountain biking in the twenty-first century is far more intrusive than cycling on paths in 1922: what matters is the intention of Parliament at that time.

This blog does not assert that cyclists are among those who may exercise the rights to air and exercise under s.193 — only that the point is not, in Pannageman's view, free from doubt. Arguably, the same considerations arise under schemes of regulation and management made under Part I of the Commons Act 1899, which typically confer (in the words of the current template scheme contained in the Schedule to the Commons (Schemes) Regulations 1982 (SI 1982/209)), 'a right of free access to every part of the common and a privilege of playing games and of enjoying other kinds of recreation thereon, subject to any byelaws made by the Council under this Scheme.' And whatever the position with legal rights, there can be no doubt that such rights may be regulated, or perhaps even suppressed, by byelaws or limitations to the contrary.

And the CROW right of access, which is excluded from a person who, 'drives or rides any vehicle other than an invalid carriage'? Well, in R v Parker, which we met above, a cyclist was a person 'having the charge of any carriage or vehicle' under s.35 of the Offences against the Person Act 1861, although I have not seen a report of the case to ascertain whether the court found that a bicycle was both a carriage and a vehicle. But the CROW restrictions on the right of access in Sch.2 to CROW are imported largely unchanged from the Second Schedule to the National Parks and Access to the Countryside Act 1949, where they applied to land to which access was conferred under an access agreement or order. What is notable about that Second Schedule, however, is a certain assonance with the approach in section 193 of the 1925 Act: neither provision expressly refers to horse riding or cycling. There is no parallel in the Second Schedule to the 1949 Act to para.1(c) in Sch.2 to CROW, which excludes a person who, 'has with him any animal other than a dog' — although the Second Schedule does exclude a person who, 'takes, or allows to enter or remain, any dog not under proper control'. Just as we may infer that the 1925 Act and 1949 Act rights are available to horse riders for want of an exclusion where one might be expected, so the exclusion of carriages (in the 1925 Act) and vehicles (in the 1949 Act) is not necessarily intended to exclude cyclists from enjoying those same rights. Whether the same argument can be spun forward into the CROW Act is another matter. For what it's worth, I can confirm that the small team of civil servants involved in drafting Part I of the CROW Bill did expect cycling to be excluded by virtue of the reference to vehicles. But we shall need a doughty successor to Robert Billson to answer these questions for certain.

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The end of prescription on commons?

Common landPosted by Hugh Craddock Tue, May 10, 2016 16:38:13

The judgment of the Court of Appeal in Littlejohns and Littlejohns v Devon County Council and the Duchy of Cornwall, handed down on 6 May 2016, tries to settle the vexed question of whether rights of common can be acquired by prescription after 1970, over land which was already registered common land. It's best to start with the background in my previous blog, where you may, if you wish, also read about the judgment in the High Court.

The appellants, Mr and Mrs Littlejohns, were fortunate, in both this court and below, to have Nicholas Le Poidevin QC acting for them: Mr Le Poidevin is the former deputy Commons Commissioner with considerable experience in this area. But in the event, by a two-to-one majority, the Court of Appeal has upheld the judgment of the High Court, and found against the appellants. Accordingly, subject to any appeal to the Supreme Court (and the brief report on the Landmark Chambers website states that permission to appeal was refused by the Court of Appeal: it could still be granted on an application to the Supreme Court), the law is that no rights of common can have been acquired by prescription over registered common land since 1970, and any commoner who (as did the appellants) continued grazing after 1970 without having registered any rights of common, cannot point to any legal authority for doing so.

The appellants' circumstances are not unique: this case was taken as far as the Court of Appeal not least because there are others who are seeking to resolve precisely the same point of law applicable to their own circumstances. Some of them may have pending applications with the defendant authority, or another pioneer commons registration authority, to register other rights of common said to have been acquired by prescription in the same way. There are surely a good number of commoners who exercise 'rights of common' which are founded in long-standing practice originating with previous generations, but, for some reason or other, the rights were not properly registered under the Commons Registration Act 1965 ('the 1965 Act'). And there will be others who do not seek to justify their grazing in long-standing practice, but nevertheless have increased their grazing activity beyond what was registered under the 1965 Act, and now hope to acquire permanent recognition for it through prescription. Last week's judgment ensures that they will be disappointed: indeed, in some cases, the judgment could threaten the viability of upland holdings where the farmer has come to rely on the use of those rights.

The Chancellor of the High Court, an ex officio judge of the Court of Appeal, Rt Hon Sir Terence Etherton, gave the dissenting judgment, and in my view, gets it right, so we will start with the Chancellor. Much of the Chancellor's judgment includes a summary of the background and statutory provisions (paras.1 to 34) and the judgment of Lang J in the High Court (paras.35 to 48). In his overview of the appeal (paras.51 to 72), the Chancellor gives considerable attention to the recommendations of the Royal Commission on Common Land, reporting in 1958, and how the 1965 Act followed, but also departed from, its recommendations.

The Chancellor observes that the defendant authority's case relies on the abolition of prescription by the 1965 Act. He says (para.76) that such a significant change to property rights ought to be effected by specific words, and focuses on s.1(2) of that Act, which is the only provision to which such consequences could be attributed, but he finds no such words present (para.77). Nor were there any words of comfort in the Parliamentary proceedings on the Bill in Hansard (para.78). Even the Commons Registration (New Land) Regulations 1969, which provide for the registration of new rights of common under s.13 of the 1965 Act, fail to explain why an application cannot be made to register rights over existing common (para.79).

If s.1(2) does not abolish prescription, the Chancellor considers whether s.1(2) has the effect that a right acquired by prescription is abolished at the very moment when prescription matures into a right? This would be after 20 years prescription, based on a 'lost modern grant' — the legal fiction that the prescriptive practice can be attributed to a former grant made by the person prescribed against (in this case, the owner of the common) which has since been lost. But he finds that s.1(2)(b), which extinguished unregistered rights of common, applies only to rights already in existence in 1970 (para.81) — were it otherwise, here too the effect would otherwise be to abolish prescription without clear words to that effect (para.82).

The Chancellor derives (para.83) some comfort from the date set by order at 31 July 1970, as the date on which unregistered rights of common were extinguished under s.1(2)(b). If the intention was that s.1(2)(b) should apply to all rights, whenever created, rather than those capable of being registered by the closing date for applications for registration under s.4 of 2 January 1970, it should have had effect on any right created after it became too late to register it, on 2 January 1970, and not on 31 July 1970 [though in my view, this may pay too much respect to those who drafted the SIs].

The Chancellor notes the argument (para.84, also expressed in my previous blog) that there is a circularity between s.1(2) and s.13. If we think of s.13 in relation to new rights of common acquired over previously unregistered land (an unlikely scenario these days, but let us suspend scepticism), the new rights become registrable under s.13 after 20 years use as of right (on the basis of a presumed lost grant). [He does not say, but it might be put like this: if s.1(2) has continuing effect, those rights, supposedly maturing on the last day of the 20th year, are immediately extinguished "unless they are registered". Is the commoner to register them at the stroke of midnight on that last day of the 20th year, before s.1(2) does its worst an instant later?] Accordingly, the Chancellor finds (para.86) that s.1(2)(b) extinguishes only rights which existed and were capable of registration on or before 2 January 1970, and inevitably, that s.1(2)(a) (which deems unregistered land to be neither common land nor town or village green) has similar effect (para.85). In other words, the Chancellor thinks that s.1(2) has a 'big bang' effect, wipes the slate clean of anything which could have been registered prior to 2 January 1970 but was not registered (commons and greens could however be registered by the registration authority on its own protective initiative up until 31 July 1970), but has no further continuing or prospective impact. He notes (para.85) an oddity if s.1(2)(b) has continuing effect: s.1(2)(a) cannot have the same continuing effect, else no land could ever become common land, and s.13 would be largely redundant.

The Chancellor recognises (para.87) that the 1965 Act was, at least so far as common land and rights of common are concerned, a staging post to comprehensive legislation, and it is not necessary to ascribe to the 1965 Act an intention of establishing a 'conclusive and comprehensive register' which had to await further legislation under the Commons Act 2006 ('the 2006 Act'). Interestingly, the Chancellor identifies a now oft-forgotten objective of the Royal Commission: to provide for improvement and agricultural intensification of common land where appropriate. That is not to say that the Commission wanted to resurrect the inclosures, but it did not view all commons with a dewy-eyed perspective of preservation. The Chancellor quotes (para.57) the Commission's report: "…we assume that, given the right circumstances, commoners who have pasture rights will generally endeavour by the better stocking of their common to attain the same level of economic production that has been achieved by the rest of the agricultural industry…". The Chancellor is convinced (para.88) that the 1965 Act was not intended to fly in the face of the Commission's perspective, by removing the mechanism of granting new rights (whether by prescription or express grant) over a registered common. And he finds nothing in the 1965 Act nor the 2006 Act which interferes with his conclusions.

The Chancellor also observes that s.13 did enable amendment of the registers to take account of a variation in a registered right of common, and considers that such a variation could embrace an enlargement of the right (para.89): there was "quite simply no discernible reason" why the 1965 Act should have allowed this, but turned its face against the grant of new rights. The Chancellor accepts the widely-held belief that the 1965 Act was poorly drafted, and concludes: "the 1965 Act should be interpreted so far as possible to give effect to a coherent policy, consistent with the objectives of the Royal Commission".

But the Chancellor is in a minority. Lewison and Tomlinson LJs do not agree, and as a majority, they find for the defendant authority.

Lewison LJ opines that the 1965 Act was intended to establish definitive and conclusive registers. He refers (paras.113 to 114) to the report of the Royal Commission in pursuance of that objective [which undoubtedly is what the Commission intended], and (para.115) to the explanatory notes to the 2006 Act, which says, "The 1965 Act was intended to establish definitive registers" [my italicisation: it is in any case quite worrying if judges are going to pray in aid quotations from Explanatory Notes to Acts, given the minimal effort put into writing them nowadays]. But the judge admits (para.117) that, "the Act did not precisely implement all the Commission’s recommendations", and quotes Mr Le Poidevin describing it as 'half-baked' (para.124). Lewison LJ finds (para.132) that s.1(2)(b) simply extinguishes any unregistered right of common which would otherwise be exercisable over registered common land. He thinks (para.137) that, were it otherwise, the system of registration established by the 1965 Act would be "all but pointless". He relies for support on Lord Hoffmann in The Trap Grounds.

[I would say that the 1965 Act was not intended to be the last word in registration — it took another 40 years to achieve that. As for the Trap Grounds, the courts accepted that the provision in the 1965 Act for the registration of greens was somehow different, and final: there was no need for further legislation (were it otherwise, we would still be waiting for a legal right of use of new greens registered under section 13): Lord Hoffmann said (para.48, Trap Grounds): "It is by no means clear that Parliament contemplated further legislation about rights over village greens." He did not suggest for a moment that the same conclusion would be justified in relation to common land, and rights of common.

Lewison LJ accepts that the 1965 Act did not compel amendments to the registers to keep them up-to-date, so undermining the argument that the registers were intended to be conclusive. So he takes comfort from concluding (para.139) that, "at least the register will reflect the maximum burden to which the registered common is subjected" [but not if the Chancellor is correct that a variation under s.13 might increase the burden]. He refers to the anomaly that a farmer who has an express right granted in 1955, but fails to register the right, would have lost it for want of registration in 1970, and by 1975 would have nothing to show for his 20 years grazing. But a neighbouring farmer who started grazing in 1955 as of right would have acquired a (non-registrable) prescriptive right in 1975, and would be better off than his neighbour who relied on the express grant. Apart from the odd discrimination between these two farmers, it gives rise to a legal anomaly: the neighbour's claim to a prescriptive right relies on a lost grant made on or before 1955. If such a lost grant really did exist, then it was indeed registrable in 1970, and must have been extinguished for want of registration. The Chancellor, in his judgment (para.96), got round this by asserting that a claim on the basis of prescription could therefore not rely on any use prior to 1970 (it would have to be 1970 onwards to at least 1990); Lewison LJ, not unreasonably, criticises that approach as putting a gloss on the legislation which is not there.

[This is valid criticism: but the lost grant is indeed a legal fiction, and legal fictions regularly lead to legal anomalies. In Bakewell Management Ltd v Brandwood, cited by Lewison LJ, the House of Lords decided that a lost grant of a right of way across common land could be inferred from 20 years' use despite use of the right of way being illegal without the landowner's consent. This leads to the very odd anomaly that for 20 years, the user is committing a criminal offence, but on the last day of the twentieth year, not only does the user become lawful, but apparently, the previous criminality is erased, for the law now assumed that the user was done with the benefit of a 'lost grant' made at the start of the 20 year term. Can the user get a pardon for past convictions?]

Lewison LJ is not impressed with arguments that his finding allows for interference with property rights without clear words in the legislation. He says that the 1965 Act clearly did interfere with property rights [i.e. in general terms, those of commoners and landowners]; prescription itself interferes with the landowner's property rights; landowners may, if they wish to expressly grant rights in the face of the court's finding, do so by granting a leasehold term which is not registrable and therefore not affected by s.1(2)(b) [but would such a right be exercisable competitively alongside other commoners with 'real' rights?]; there is no interference with the landowner's other interests, such as to grant easements [this hardly seems relevant]; in promoting the Commons Bill in Parliament, the Minister accepted that there was controversy over whether prescriptive rights could still be created [indeed — but this is, as I commented in my previous blog, agnostic evidence: Parliament was leaving it to the courts to decide]; and the Royal Commission wanted no further claims in respect of registered commons [leaving aside whether the Commission's recommendations were given proper effect, one questions whether the Commission had in mind claims which could not even be made at the cut-off date for registration]. Lewison LJ concludes that, "If Mr Le Poidevin is right then the [1965 Act] register is virtually useless".

[Well, quite so. In my view, that is why further legislation was contemplated by the Act itself, and passed in 2006. It's just that, in 1965, no-one contemplated that it would take 40 years for new legislation to polish off the work commissioned by the 1965 Act. Indeed, Ministers said at the time that it would take Commons Commissioners five years to sort out the disputes engendered by provisional registration under the 1965 Act — but it was not until Mr Le Poidevin himself determined the final case in 2010 that this work was done. If the drafters of the legislation thought it would all be sorted out by 1975, and further legislation would follow, then it was of little matter if interim legislation had only interim effects. The judge asks: "why did Parliament prohibit registration of new rights of common over common land registered under the 1965 Act, if it did not intend that they should no longer be capable of acquisition?" That would be a good question, if it were correct. But it isn't. True it is that the 1965 Act did not confer powers to register such rights. But it was only r.3(2) of the Commons Registration (New Land) Regulations 1969 which prohibited registration. Attributing to Parliament an intention in secondary legislation subject only to negative resolution goes too far.]

Tomlinson LJ agrees with Lewison LJ, briefly citing eight points which have proved decisive:

  • ● the intention of the 1965 Act to establish a definitive register (albeit one not conclusive of extent of common land);
  • ● the natural meaning of s.1(2), that after 31 July 1970, unregistered rights of common were not to be exercisable;
  • ● the reference to 'any such land' in s.1(2)(b) over which such rights were no longer to be exercisable was intended to mean registered common land;
  • ● s.1(2)(a) referred to "no land capable of being registered under this Act" but s.1(2)(b) referred only to "no rights of common shall be exercisable": it therefore did not distinguish rights which were capable of being registered under the Act;
  • ● s.13 was concerned with land which became common land after 31 July 1970;
  • ● r.3(2) of the Commons Registration (New Land) Regulations 1969 properly gives effect to the scheme of the parent Act;
  • ● the 1965 Act did intend to effect the prospective abolition of prescription for rights of common, in line with the intentions of the Royal Commission; and
  • ● the alternative approach subscribed to by the Chancellor would involve an anomalous treatment of rights acquired by lost modern grant.

In my view, the Chancellor, in his judgment, gets under the skin of the 1965 Act and better understands the scheme of that Act — to the extent that it had a scheme. Nevertheless, unless there is an improbable appeal, the matter has now been decided. One can only wonder what will happen to the Littlejohns' grazing activity on Okehampton Common and the Forest of Dartmoor. The court has decided that their grazing can have no lawful origin. Yet the landowner, the Duchy of Cornwall, has taken no part in the proceedings. Will the landowner, or any commoner (we cannot now rightly call the Littlejohns 'commoners'), take action to exclude the Littlejohns from grazing on the commons — even though they, and their father, have been grazing the commons for decades?

Okehampton Common: Copyright David Brown and licensed for reuse under this Creative Commons Licence.

The judgment can also be seen with brief comment from Landmark Chambers: Stephen Whale of Landmark acted for the defendant authority.

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Biological survey data online

Common landPosted by Hugh Craddock Tue, December 29, 2015 22:10:07

Some 20 or 30 years ago (the details are now a little hazy), the then Department of the Environment commissioned a huge study of the common land in England. The contract was let to the Rural Surveys Research Unit (RSRU) at the University of Wales, Aberystwyth, and was done by a team led by Prof. John Aitchison. Although the start date is uncertain, the final report was not presented until summer 2000 — by which time digitisation of large datasets had begun to catch up with the project, although it didn't start out like that. The report is generally referred to today as the 'biological survey of common land', although that appellation does not do justice to the breadth of the data gathered.

The outputs were colossal, and comprised:

  • • a database of every registered common in England, with details of size, location, registered ownership, rights of common, natural context and other aspects;
  • • a series of county reports focused on the nature conservation character of common land in that administrative area (those which were prepared by the RSRU in electronic format, about half, are available via the National Archives web archive of the Defra website);
  • • a series of county volumes containing datasheets for each of the commons in the administrative area;
  • • a national overview report of the project.

The database was exported into an Excel spreadsheet, and this is still available, now on gov.uk; however, the export truncated all long text fields in the database, so that the spreadsheet is valuable for the numeric data, but frustratingly incomplete for verbal analysis. This last defect has now been rectified, as the data, including the original Microsoft Access database, are now available for download on data.gov.uk. The publication of the data is part of the Government's drive to make more public data available online, and one expectation is that people will be able to make innovative use of the data. One early example of that is the common-land.com, which converted the Excel spreadsheet into html form for presentation on a dedicated website. Now that the dataset is available in its original unabridged form, perhaps others will find new uses for the data?

Incidentally, the RSRU performed a similar, independent survey of town and village greens, with the support of the Women's Institute whose members conducted local surveys of individual greens. One of the outputs of this survey is the database of town or village greens (in pdf on gov.uk and in Excel on the National Archives web archive), although this too suffers from truncation.

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Updating the commons registers (1)

Common landPosted by Hugh Craddock Tue, October 13, 2015 19:22:25

It is often said that the registers of common land (and town or village greens) drawn up under the Commons Registration Act 1965 (the 1965 Act) are out-of-date. And so they are: they were, after all, initiated by applications for registration made between 1967 and 1969. While it has remained possible to apply to modify the registers for certain purposes (and there is no charge for doing so), there has been no compulsion to do so, and many changes affecting what is shown in the registers have gone unregistered, leaving the registers an ever less comprehensive record of commons and the rights which are exercisable over them. (What follows refers to the registers of common land, but similar issues can apply to the registers of greens, albeit less frequently a cause for concern.)

Legally, this does not strictly matter. There are nine commons registration authorities pioneering the implementation of Part 1 of the Commons Act 2006 (Part 1), and where steps are being taken to update the registers. Outside these areas, the registers are "conclusive evidence of the matters registered, as at the date of registration (1965 Act, s.10, my italicisation). So, to the extent that the registers are now incomplete or inaccurate, the registers must be read alongside any other evidence of events subsequent to 1969 which affects the veracity of what is shown in them. For example, a commoner (the owner of a right of common) may have entered into a deed with the owner of the common, surrendering the right to the landowner, which has the effect of extinguishing the right for all time. The extinguishment of the right may (and should) be registered (under s.13(a) of the 1965 Act), so as to cancel the registration of the right in the register. But there is no obligation on anyone to do so: indeed, an application for such and similar purposes may be made only by a person having an 'interest' in the matter — see r.29 of the Commons General Regulations 1966 (SI 1966/1471) as amended by SI 1968/658 here. To any assertion that the register shows that the right exists, and were conclusively in existence 'as at the date of registration', the former commoner, or more likely the common owner, need only produce the deed, to show that the register is out-of-date and, on that matter, what is shown in the register can be left out of the reckoning. That may be the correct position, but it can be very frustrating for those who use the registers and expect them to present a comprehensive picture.

Part 1 seeks to ensure that the 1965 Act registers are brought up-to-date, to rectify the omitted amendments of the last 45 years, and kept that way. It does this, not generally by compelling applications to amend the register, but by inducing them. Where it has been brought into force, in the nine pioneer areas, it does this in several ways:

  • • by providing that rights of common which are capable of registration, but are not registered, are extinguished (at the end of an initial transitional period) (para.3 of Sch.3);
  • • by providing that various other things affecting what is shown in the registers (such as the creation or extinguishment of rights of common) can have effect only if done, in a prescribed form, by application for registration (ss.6–13) — in effect, by ensuring that these things can no longer be done 'off register';
  • • by abolishing certain mechanisms by which common law events can affect what is shown in the registers (i.e. the creation of rights of common by prescription, and the extinguishment of rights of common, ss.6 and 13);
  • • by re-enacting provision for the conclusiveness of a right of common entered in the register, upon its registration (s.18;
  • • by providing that statutory dispositions affecting what is shown in the registers (such as an exchange of land required to facilitate a road scheme across common land) do not operate at law so as to affect the status of the land, nor any rights exercisable over it, until the disposition is registered (r.44(2) of the Commons Registration (England) Regulations 2014, the 2014 Regulations, SI 2014/3038);
  • • an exception to the generality of the absence of compulsion, by placing a duty (generally on public authorities) to register the effect of a statutory disposition (s.14 given effect by para.8(2) of Sch.4 to the 2014 Regulations);
  • • by providing that other legislation which refers to common land or town or village greens, may be amended by secondary legislation (s.54), so that those references apply only to common land, or greens, which are registered under Part 1 of the 2006 Act — this last power is likely to be exercised only when Part 1 has been applied to the whole of England, the transitional period has expired, and reasonable opportunity has been afforded to apply to amend the register to deregister wrongly registered land under Schedule 2 or section 19.
  • • by ensuring that notice of applications or proposals under Part 1 affecting rights exercisable over registered land must be served on those parties who have declared their entitlement to exercise rights of common, and so updated the register to provide a direct connection between the registered right and the commoner entitled to it (para.1(a) of Sch.7 to the 2014 Regulations).

In the last case, such declarations have been facilitated by r.43 of the 2014 Regulations, and may be made so as to address the obvious drawback that the register does not directly identify the owner of a right of common attached to land, but only the land to which the right is attached. The owner or occupier of that land may declare to the registration authority his or her entitlement to exercise the right by virtue of that ownership or occupation, and if the authority is satisfied with the evidence provided, it will modify the registration to show details of the declaration. A declarant is guaranteed to be notified of applications and proposals affecting the land, whereas the difficulty in identifying other commoners from the register, and particular those entitled to dormant rights, means that no such obligation is owed to them.

By these means, the intention is that, subject to full implementation (yet to occur outside the nine pioneer local authority areas) and an initial transitional period, the registers should become, and subsequently remain, up-to-date. It is inevitable that, even then, mistakes will be made, and amendments for which applications should be made to amend the registers will not be made. But, generally, the law will assume, for the first time, that the register is correct, and that the consequences of an oversight will fall on the parties who made the mistake, rather than the world at large which, unsurprisingly, expects the register to be correct.

But I have already alluded to one significant respect in which the registers are bound to disappoint. By and large, the registers will not directly identify those who 'own' (technically, those who are entitled to exercise) rights of common, even though the registers will be conclusive about what rights exist. As we have seen, provision for declarations of entitlement to rights of common will help to address that omission. But the omission is itself often a matter for surprise and criticism, and merits some explanation. That will be the subject of a future blog.

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SPS on common land: claims for underpayment

Common landPosted by Hugh Craddock Fri, September 18, 2015 19:20:24

Defra published today arrangements for claims arising from the mistaken methodology adopted for the payment of the Single Payment Scheme on common land, referred to in a previous blog and explained in the Defra policy announcement.

As the announcement is closely connected with my role in Defra, please refer to the gov.uk website for further information.

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Commons reregistration in Cornwall:EIR disclosures

Common landPosted by Hugh Craddock Thu, September 10, 2015 11:02:08

A fascinating insight into landowners' concern with the workings of the Commons Act 2006 in the pioneer areas, is revealed today in an EIR (Environmental Information Regulations 2004) disclosure.

The correspondence records the dissatisfaction of local landowners and farmers in the Penwith peninsula of Cornwall whose land is subject to applications for the registration of the land as common land under paragraph 4 of Schedule 2 to the 2006 Act. Paragraph 4 was enacted to revisit some of the more egregious mistakes of the registration process under the Commons Registration Act 1965 — most often, where applications to register common land were rejected by a Commons Commissioner on a false understanding of the law relating to waste land of a manor, which was corrected by a judgement of the House of Lords too late to influence the outcome in most cases. Only land which was the subject of a provisional application for registration under the 1965 Act can be the subject of an application today under paragraph 4.

The disclosures are quite frank, and show how local landowners' concerns have been raised at Ministerial meetings with the Country Land and Business Association. PannageMan will not be quoting selectively from the disclosures, but a careful perusal will reveal some interesting and surprising comments about the application process, the landowners' interest in the application land, the effect of a successful application on the management of the land and the mangement of sites of special scientific interest, and the National Trust's position in relation to such applications affecting its land. Read on… .

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Registering land omitted by mistake: applications under s.19

Common landPosted by Hugh Craddock Sun, August 02, 2015 18:52:39

A recent application (see the notice for Church Hill Common, Ringland) in Norfolk under Part 1 of the Commons Act 2006 has highlighted the new opportunity to get land registered as common land, or as a town or village green, even in the majority areas of England which are not pioneering the full implementation of Part 1.

Part 1 of the 2006 Act provides for new arrangements for keeping and maintaining the registers of common land and town and village greens in England and Wales, but in England, Part 1 has been fully brought into force only in nine pioneer commons registration (i.e. local) authority areas (see the list in Sch.1 to the Commons Registration (England) Regulations 2014), and in Wales, not at all. Elsewhere, Part 1 has been commenced for particular purposes only: primarily, to register new town or village greens under s.15, and, with effect from 15 December 2014, to deregister certain wrongly registered land — a fuller explanation can be found in my November 2014 blog.

At the time, in my blogs of November 2014 and December 2014, I mistakenly assumed that the commencement order for these provisions (the Commons Act 2006 (Commencement No. 7, Transitional and Savings Provisions) (England) Order 2014) brought s.19 into force (apart from the pioneer areas) solely for the purposes of correcting mistakes in the register made by a commons registration authority so as to deregister wrongly registered common land. Such a mistake might have been made where at the time (between 1967 and 1969) of provisional registration of land as common land, the map of the common supplied by the applicant for registration was incorrectly transposed by the authority into the register to include land not in fact shown on the application map (this occasionally happened where the application map excluded island cottages within the common, but the authority failed to pick these up). There is no doubt that such land may now be the subject of an application for amendment of the register under s.19 — and not before time, since at least 45 years will have elapsed since the mistake was made.

The commencement order does indeed bring s.19 into force for the limited purpose of para.(a) of subs.(2): "correcting a mistake made by the commons registration authority in making or amending an entry in the register" (see art.3(2)(b) of the commencement order), and then only on an application made by any person (so that the authority cannot make a proposal to amend the register on its own initiative — see the exclusion from commencement of s.19(4)(a) in art.3(2)(b)). But there is no restriction on the scope of an application for the purpose of s.19(2)(a): so an application could be made equally if the authority's error in transposing the original application map was to omit land shown on that map. Or if the authority, in registering a provisional right to graze 100 cattle, actually registered a right for 10 cattle.

The result is a little surprising, because the only other substantive provisions in Part 1 which have been brought into force (again, outside the pioneer areas) are paras.6 to 9 of Sch.2 which enable the deregistration of land (see art.3(2)(d) and (3)(b) of the commencement order). Indeed, art.3(3)(a) of the commencement order, which states that s.19 is brought into force "for the purpose given in section 19(2)(a) (correcting a mistake made by the registration authority in making or amending an entry in the register)", appears to be largely redundant, because that constraint has already been achieved by art.3(2)(b). And note that applications for the purpose of s.19(2)(a) are free: see the entry for s.19 in Sch.5 to the the 2014 Regulations.

Thus it is that the application for Church Hill Common, Ringland is to add land to the register which was excluded from the original provisional registration which has long since become final. If, indeed, the omitted land was contained within the original application map, and if the commons registration authority (Norfolk County Council) is satisfied that the exception in s.19(5) does not apply, then the outcome will be the addition of new common land to the Norfolk registers, even though Norfolk is not one of the pioneer authorities. Similar applications seem likely elsewhere.

And the s.19(5) exception? This easily overlooked gloss on s.19 says that: "A mistake in a register may not be corrected under [section 19] if the authority considers that, by reason of reliance reasonably placed on the register by any person or for any other reason, it would in all the circumstances be unfair to do so." This exception might apply if, for example, someone had bought land having confirmed that it was not registered common land nor town or village green, had no reason to suppose that a mistake had been made in giving effect to the original provisional registration, and now would suffer significant detriment if the omitted land were registered. There may be some precedent for the measure of 'unfair'ness in s.19(5), to be found in s.14 of the Commons Registration Act 1965, which enables rectification of a registration made under that Act if the court considers it 'just'. Those who wish to explore the test of justness, and by analogy, the exception of unfairness, would do well to look at the judgment of the Supreme Court in Taylor v Betterment Properties (Weymouth) Ltd and Adamson and others v Paddico (267) Ltd, which explored this issue in detail, in relation to applications from two landowners to deregister two different town greens under s.14(b) of the 1965 Act.

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Bodmin Moor Commons Council

Common landPosted by Hugh Craddock Fri, July 17, 2015 21:46:47

Defra has made an order to establish the Bodmin Moor Commons Council (The Bodmin Moor Commons Council Establishment Order 2015). The order follows consultation, launched in February 2015, on a draft order. You can see the consultation paper, the draft order, and the outcome of the consultation, on gov.uk. For more about the order and the background, see my earlier blog on the draft order, and the explanatory memorandum.

In deciding to make the order following the consultation, the Secretary of State must be satisfied that there is substantial support for it, having particular regard to responses from those (such as commoners and landowners) with a legal interest in the land. It seems that there is little doubt about that, for 202 responses were received, of which 96% were in favour; of those 166 respondents who demonstrated a legal interest, again 96% were in favour. This is a remarkable response rate for a highly focused consultation, although we are not told, and perhaps no-one yet quite knows, how many persons are entitled to exercise rights of common on the Bodmin Moor commons, and therefore what proportion expressed support.

The Bodmin Moor Commons Council will be the second council to be set up under Part 2 of the Commons Act 2006, although the third council in England (the Dartmoor Commoners' Council was established under a local Act, the Dartmoor Commons Act 1985). The council comprises 24 to 26 members, most of whom are elected by the active or inactive commoners with rights of common exercisable over the Bodmin Moor commons. Further council members are appointed by the landowners, and there is a power to co-opt up to two further members. There is an initial electoral process between the coming into force date of 1 September 2015, and the date of 1 March 2016 on which the council is established, so that the council's membership is fully constituted by the latter date. The council will have powers to manage the grazing, vegetation and rights of common on the Bodmin Moor commons, and its most potent tool for this purpose is a power to make rules, or byelaws: for example, a rule may prohibit the turning out of animals by a person without a right to do so, and therefore attempt to tackle grazing by farmers with no rights of common (or those who are exceeding their rights) — although the grazier will first have to be identified. Breach of a rule may be made a criminal offence: for this reason, such rules must first be approved by the Secretary of State.

The order as made has been slightly amended from the version on which consultation took place (whereas an affirmative resolution order laid in draft before Parliament cannot be amended after approval by Parliament, it seems there must be some flexibility to amend the consultation draft, and it would be odd if the Secretary of State could not respond to any comments made during the consultation, other than to withdraw the order and begin again). Some minor errors relating to the provision numbering and duplicate register units have been addressed. More significantly, whereas the draft contained no provision about regulations under the Commons Act 1908, art.11 now abolishes any such regulations. The 1908 Act enabled committees of commoners to be elected to make such regulations to control the turning out of entire animals, and there is some evidence that regulations were indeed made in relation to some of the Bodmin Moor commons. However, PannageMan understands that evidence for the precise form of any regulations still in force was elusive, despite a search of National Archives files (see for example MAF 235/201), and art.11 therefore has general effect in revoking any extant regulations, rather than, as would be usual, revoking specific regulations.

No modification has been made to the order in respect of para.13 of Sch.2, by which the owners of the Bodmin Moor commons are still required to act in unison in appointing their four representatives, So there remains no provision for a situation in which the owners cannot agree on a slate of four appointees.

The council will come into existence on 1 March 2016, after the initial electoral process has been concluded, and will then be free to embark on bringing new management to the Bodmin Moor commons, for the first time since manorial management structures faded away over a century ago, and 20 years after the Bodmin Moor Commons Bill was presented to Parliament seeking similar powers through primary legislation.

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Prescription for rights of common reaches the courts

Common landPosted by Hugh Craddock Sun, March 29, 2015 18:49:38

Last week, the High Court handed down judgment in R (on the application of Littlejohns and Littlejohns) v Devon County Council and the Duchy of Cornwall, a case brought by a Dartmoor grazier couple, to decide whether the graziers have acquired rights of common grazing by prescription — that is, by long practice of the grazing, 'as of right' (meaning, as if it had been done in the same fashion as a grazier with a right to graze, even though, at the time, there was none).

In the distant past, such a case would have been unsurprising, for many rights of common were established by prescription, even if in historical theory, they might have been attributable to some ancient manorial grant. There would have been little doubt about the rules of prescription, but the case might have been fought over the facts, such as the quantification of the rights, and the extent of the common over which the claimed grazing took place. When the registers of common land were drawn up in the late 1960s under the Commons Registration Act 1965, commoners were invited to make provisional registrations of their rights, and many would have decided what to do on the basis of past practice — essentially prescription — albeit some decided to add a bit on top for good measure. In due course, the Commons Commissioner subsequently determined the merits of disputed provisional registrations, very often on the same principles of prescription, looking at what evidence the commoner could produce of long-standing grazing practices.

Fifty years on, there is no doubt that (at least, in certain parts of England) statute law has abolished the prescriptive acquisition of rights of common, and graziers can no longer rely on prescription to convert long-standing grazing into a right of common, for s.6(1) of the Commons Act 2006 does precisely that in plain language: "A right of common cannot at any time after the commencement of this section be created over land to which this Part applies by virtue of prescription." The question to be decided in the High Court was whether abolition occurred before s.6 came into force, as a subtle consequence of the 1965 Act: not explicitly stated but to be inferred just the same? For s.6 is forward looking and has nothing to say about prescriptive rights already acquired, and even now, it has been brought into force only in the nine areas of commons registration authorities pioneering the implementation of the 2006 Act.

Prescription is the foundation of private rights, such as rights of common, but also, for example, private rights of way and rights to light. It provides a mechanism by which one person may acquire a right to do something which is or may be to the detriment of another. It operates on the principle that if that person has done something for so long (typically 20 years, formerly 30 years, but at one time, only if done since time immemorial), openly, without permission, and without hindrance, then it would be unconscionable to allow interference in what is being done, and the law will infer some legal if possibly fictional origin to it, such as a grant by the other party, even where there is evidence to show that the legal origin is in fact impossible. It is surprising therefore that there is uncertainty about whether prescription for rights of common was in fact quietly abolished by the 1965 Act, and it is worth exploring how this might have happened.

The 1965 Act was transitional legislation: it was intended to enable the establishment of registers of common land (and town and village greens) but no more: it left the question of the regulation of the exercise of rights of common, and of common land itself, to future legislation: indeed, s.15(3) said that the question of how many rights of common should be exercisable, out of those actually registered, should be resolved "as Parliament may hereafter determine" (s.15(3)). Despite this, it did two relevant things which are said to have affected prescriptive rights.

First, the 1965 Act made it compulsory to register subsisting rights of common. It did not do this through any criminal sanctions, but through the expedient of rendering unexercisable any unregistered rights: s.1(2)(b) said that from 1 July 1970 (the end of the period appointed for provisional registration), "no rights of common shall be exercisable over any [registrable common] land unless they are registered…under this Act…". The courts subsequently decided that a right which was not 'exercisable' was in practice extinguished.

But what impact did s.1(2)(b) have on prescriptive rights? It undoubtedly extinguished any prescriptive rights which had already matured by 1970, for these could, and should, have been registered under the 1965 Act. But a grazier might have been grazing 'as of right' for just 15 years in 1970, and so had no basis on which to register the right by the deadline for registration in 1970. Could it be registered by 1975? On the face of it, as soon as the grazing practice matured into a prescriptive right in 1975, s.1(2)(b) acted to cut it down again, by rendering the emerging right immediately unexercisable unless and until it was registered (as to which, see below). It seems that the cow, grazing on the pasture, having acquired a right to graze on the 20th anniversary of that grazing, would immediately have it taken away, no sooner gained than gone. However, there is an alternative argument that s.1(2)(b) must be interpreted as having a 'Big Bang' impact. That interpretation says that it operates only on rights which were already subsisting on 1 July 1970, and not those which might be acquired at some later date.

Secondly, r.3(2) of the Commons Registration (New Land) Regulations 1969, made under the 1965 Act, forbad the registration after 1970 of any new or further right of common over land already registered as common land. In other words, after the closure of the provisional registration period from 1967 and 1970, the registers were seemingly to be final about what rights of common subsisted over any registered common land. A right of common over existing common land granted since 1970 by the landowner, or one acquired by prescription maturing after that date, could not be registered under the regulations. And since it could not appear on the register, then if the 'Big Bang' theory was correct, the register would present an incomplete picture of subsisting rights (because the new right would subsist, but be incapable of registration), and if it were wrong, then the new right could have no existence whatsoever (because it would have been extinguished by s.1(2)(b)).

In short, there were two schools of thought:

  • • that it were still possible to acquire new rights of common over existing common land (including by prescription) after 1970, but impossible to register them; or
  • • that the 1965 Act had terminated any possibility of acquiring new rights of common over existing common land after 1970.

None of this prevented a new right of common being acquired over land which was not previously common land: the regulations did provide for that unlikely eventuality (Pannageman has never encountered such a case, although one such was cited in debate on the Commons Bill), although if the 'Big Bang' theory were wrong, any such right would become exercisable only after registration, if at all (see below).

This uncertainty has endured since 1970. The practical effect of the regulations may have discouraged litigation: after all, because a claimed prescriptive right could not be registered, there was less incentive to demonstrate its existence.

As we have seen, s.6 of the 2006 Act legislated to remove this uncertainty for the future. The 2006 Act says nothing directly about claimed prescription between 1970 and the commencement of that section. But it is not entirely silent on the subject, because para.2(2)(a) of Sch.3 to the 2006 Act provides for registration arising from "the creation of a right of common (by any means, including prescription)" occurring between 1970 and the commencement of the Schedule. This point might be thought conclusive: there is a specific parenthetical reference to the creation of rights by prescription after 1970. But it is not: it could be taken to embrace only the acquisition of rights by prescription over land which was not already registered, where such rights had not (but could have) been registered under the 1965 Act. So the Schedule is agnostic about the potential for acquisition of rights of common by prescription after 1970: it does not attempt to clarify the point, but it does not close the door on the possibility.

Let's turn to the High Court challenge. This has been long-awaited: the 2006 Act was brought into force in Devon (and several other areas) in 2008, and while the question of prescriptive rights was immediately in play in relation to the Dartmoor commons, it has taken nearly seven years for the matter to be resolved (although PannageMan understands that there will be an appeal). The judgment sets out the facts of the case, but it is sufficient to say here that the claimants' predecessors had long exercised rights of common on certain Dartmoor commons, but for whatever reason, failed to register them under the 1965 Act before the cut-off date of 2 January 1970. They had continued to graze without objection, and the question was whether, since their rights had undoubtedly been extinguished on 31 July 1970 (the date appointed under s.1(2) of the 1965 Act) for want of registration, the claimants had acquired new rights by prescription since 1970.

The claimants applied to the council under para.2(2)(a) of Sch.3 to register their claimed prescriptive rights in March 2010, and after much consideration, the council refused the application in May 2014. This case was an application for judicial review of the council's decision.

The court began by considering the effect of the 1965 Act. It was accepted, as we have seen, that the claimants were unable to register their claimed rights under the 1965 Act. The claimants said that, nevertheless, it was possible to acquire such rights, whereas the council said that s.1(2)(b) either made it impossible to acquire the rights, or if they were acquired, they were immediately extinguished.

The court sided with the council: the judge rejected the 'Big Bang' view of s.1(2)(b), and said it: "is so broadly expressed that it cannot be read as limited to rights which were in existence prior to 31 July 1970. Moreover, the parallel existence of rights which were unregistered would be contrary to the purpose of the CRA 1965." The court took comfort from the 1969 Regulations, and from the decision of the House of Lords in the Trap Grounds case, in which Lord Hoffmann said that: "because the new register is conclusive, [land claimed as a village green] does not become a village green until it has been registered". So the court took the view that new rights could not be acquired under the 1965 Act. The judge said that if she were mistaken about that, any rights which were acquired would nonetheless be extinguished on maturation because of the effect of s.1(2)(b). She concluded: "it would have been inconsistent with the legislative purpose of the CRA 1965 to allow unregistered rights of common to co-exist alongside registered rights of common. Either the unregistered rights never had legal effect or their legal effect at common law was automatically extinguished by operation of section 1(2)(b)."

The court went on to consider whether the 2006 Act affected the conclusions on the 1965 Act. It did not. Parliament could have acted to revive rights, such as the claimants', which were incapable of being registered under the 1965 Act, but did not do so. The judge said: "The Minister and Parliament were aware of the possibility that no new rights of common could have arisen over existing common land under the CRA 1965 (see Hansard, HL, vol 674, col GC 284) but made no express provision for registration of this category of rights."

The judge also noted that s.6 allowed for the creation of new rights of common over existing common land, and took the view, "that the way forward adopted by Parliament was to make express provision for applications to register new grazing rights of common over existing common land, but subject to the control of the commons registration authority which could refuse to register the rights if the land could not sustain any further grazing."

Comment: The court attributed a continuing purpose to s.1(2)(b) (i.e. that the provision does not have a once-and-for-all 'Big Bang' effect). Although the court cites the judgment in the Trap Grounds case, that judgment found only that greens had no legal status until they were registered: it did not specifically rely on s.1(2) (indeed, Lord Hoffman instead says that: "…the argument that it [the land] would have 'become a village green' is a misreading of sections 13 and 22 of the 1965 Act" (para.43)). In a dissenting opinion (on this particular question), Lady Hale specifically commented (para.141) that: "section 1(2)(a) cannot apply to land which became a green after the axe fell: otherwise there could be no new greens at all." Whereas, since the 1965 Act was enacted, a village green has been required to fulfil an entirely statutory definition in order to qualify for registration, a right of common remains a common law entity, and the 1965 Act has nothing to say about what is meant by a 'right of common', or what qualifies as a right, other than to say (s.22(1)) that it includes certain obscure kinds of sole rights and cattlegates. It is entirely plausible that a village green, now being the creature of statute, has life only when it is registered, whereas rights of common continue to arise at common law, whether or not registered.

If s.1(2)(b) has a continuing effect, it is hard to see how it operates in relation to the post-1970 period. Imagine a right of common granted by a landowner so as to create a new common (something which could be registered under the 1965 Act and the 1969 Regulations). It seems that the new right is not effective until it is registered. But if it is not registered, when does s.1(2)(b) act so as to extinguish it? Immediately on its grant? Or after a day, a month, a year, or a lifetime? It was quite clear when s.1(2)(b) had that effect in relation to rights subsisting pre-1970: on 31 July 1970. It is less easy to find the same clarity thereafter. Perhaps s.1(2)(b) simply means that the granted right is unexercisable until it is registered: but the Act uses the word 'unless', not 'until', and that encourages the 'Big Bang' perspective. Or indeed, perhaps the Act really does mean 'unexercisable' and not, as the courts have found, extinguished: but if so, that has some pretty momentous implications for the many rights which were not registered under the 1965 Act and which would turn out not to have been extinguished at all.

Nor is there any obvious reason why s.1(2)(b) should have a continuing effect. The judge said that: "the legislative intention of the CRA 1965 was that all common land and rights of common should be registered and that registration would be conclusive evidence of the matters registered, under section 10." But the 1965 Act was no more than first stage legislation: as we have seen, it anticipated (though with a gap of 40 years) second stage legislation. In the Trap Grounds case, Lord Hoffmann conceded that the 1965 Act contemplated further legislation about common land: "Section 1(3)(b) contemplated further legislation on the vesting of unclaimed common land, … . Section 15(3) contemplates further legislation affecting the exercise of rights of common, … . … There are several references to registration being a 'first stage' and to a later measure 'for the better management and improvement of common land' (2nd reading debate, 6 February 1965, col 90)", but concluded that: "It is by no means clear that Parliament contemplated further legislation about rights over village greens." And in the same case when it came before the High Court, Lightman J quoted (para.7) the Minister of Land and Natural Resources, Frederick Willey, who explained (Commons Hansard, vol 711, col 456) why two stage legislation was necessary: "First of all we should create the machinery for establishing the facts by registration: that is the simple purpose of this Bill. Until the facts are authoritatively established and recorded it would be premature to frame the further legislation that will be required. What the Bill will do is to provide the foundation for the further commons legislation making provision for statutory schemes for the management and improvement of common land." Lightman J then noted (para.9) the promise of second stage legislation embedded in the Act itself (ss.1(3)(b) and 15(3)), but concluded that (para.10), "The 1965 Act however disclosed no equivalent gaps in respect of Greens."

Certainly, the 1965 Act did not put in place a mechanism to require the registers to be kept up-to-date: for example, there was nothing in the 1965 Act to require a right of common to be removed from the register if it was extinguished, or to require an exchange of common land to be noted on the register: these things could be done, but were not made mandatory. It was not until the 2006 Act that any sanctions were put in place for that purpose. And the conclusiveness conferred by s.10 was illusory: that provision states that the matters are conclusive "as at the date of registration": i.e. at some time in the late 1960s. By the early C21, the registers were out-of-date, and anything contained within them could be challenged on the basis that they had been overtaken by off-register events. For example, the register might show a right of common attached to land: but the right could have been extinguished, varied, severed from the land, apportioned or (possibly) have been abandoned for want of use. None of these events need have been recorded in the register. The draughtsman of the 1965 Act knew this, but had little concern, because he assumed that further legislation in the 1970s would address it. So the 1965 Act could not, and did not, deliver conclusive registers, and an interpretation of s.1(2)(b) on the basis that it did intend to do so may be mistaken.

The 1969 Regulations made no provision for the registration of new rights of common over existing common land. The court did not consider whether that omission might have been ultra vires. However, it is more likely that the 1969 Regulations strictly follow the regulation-making powers in s.13 of the 1965 Act, which do not allow for amendment of the registers in relation to the creation of new rights over existing common land, and so the draughtsman of those regulations probably felt that no provision could be made for that purpose. That is more likely to reflect a flaw, or perhaps an ill-informed intention, in the drafting of the 1965 Act. Oddly, the 1969 Regulations do appear to contemplate the registration of a new right of common over land which has itself already been registered after 1970 under s.13 (see r.3(2)), but without any obvious mechanism for enabling it to happen.

The Common Land Forum, in 1986, reported that: "It seems to us that Parliament could not have intended to bring about a situation in which new rights of common could be registered over a newly created common but not over an existing registered common". The Regulations meant that, for example, where the owner of a common wished to sell a tenanted farm to the sitting tenant, and the tenant had long-standing rights of grazing on the common by virtue of the tenancy (rights which could be registered as rights of common, because the owner of a common cannot have a right of common over the owner's own land), the owner could not grant the former tenant a right of common to replace the rights under the tenancy.

The judge said that Parliament made no express provision in the 2006 Act to revive rights suppressed by the 1965 Act, referring to a debate on the Commons Bill in the House of Lords. The Minister, Willy Bach, observed (Lords Hansard, 25 Oct 2005 : Column GC284): "It is not possible to say whether any new rights of common have been acquired by prescription over existing registered common land, because the 1965 Act does not enable such rights to be registered, and some would say neither does the Act allow the rights to be exercised. Schedule 2 enables such rights, if they are capable of existing, to be registered during the transitional period." So the debate suggests Ministers' agnosticism: they did not know what effect the 1965 Act had had, and intended the 2006 Act to be neutral. They did not make any express provision to revive suppressed rights, because they were uncertain whether they were indeed suppressed.

The court noted that s.6(1) of the 2006 Act abolishes prescription prospectively. But that provision might be said to convey an implication that prescription had not impliedly been abolished by the 1965 Act. After all, if it had been, s.6(1) is all but redundant, except in relation to land which is unregistered — yet in respect of which there had been no, or perhaps one, known claim of prescriptive rights since 1970.

The court also noted the role of s.6 in allowing for the creation of new rights of common over existing commons, and thought that to be the 'way forward'. But s.6 suggests that Parliament was not opposed to the creation of new such rights, and provided for a mechanism to allow it to happen. If so, can it be taken to have intended that there was a period of 40 years, after 1970, when no new rights could be created? The role of the commons registration authority in validating the creation of new rights under s.6(6) is probably no more than an administrative formalisation of the existing common law position, which is that new rights could not be granted over an existing common if there was no capacity to accommodate those new rights, for the owner cannot grant what is not the owner's to give.

This last point raises a point apparently unconsidered in the case: was it possible for the claimants to acquire a right of common over the Dartmoor commons after 1970 if the commons were oversubscribed? The consequence of registration under the 1965 Act was to create registered rights exercisable over many commons which were well in excess of the commons' grazing capacity. We are not told the position in relation to the particular commons affected by this claim (Okehampton Common (CL 155); Forest of Dartmoor (CL 164); and the Triangle (CL 135)), but the Duchy of Cornwall, the landowner, did not take part in the case, and therefore we do not know whether a successful claim by the claimant would have diminished the grazing available to the existing registered commoners. All we can say is that it seems no objection has ever been made on these grounds.

Finally, the debate about whether the prescriptive acquisition of rights of common grazing was abolished under the 1965 Act or 2006 Act may have overlooked an even earlier if unlikely source of abolition: the Theft Act 1968. S.1(1) provides that, "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it", and 'property' includes "things forming part of land and severed from it by him [where the person] is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed". Indeed, s.4(3) specifically has to exclude mushroom picking from the scope of theft (if done for personal use). So grazing animals on someone else's land, so that the animals sever and consume the grass growing on it, might show the necessary ingredients of an offence under the 1968 Act. In the past, the courts have been reluctant to recognise a prescriptive right to do something illegal. However, recent judgments (Bakewell Management Ltd v Brandwood and others, R (on the application of Best) v Chief Land Registrar and The Secretary of State for Justice) suggest that a prescriptive right can be acquired to do something which may be a criminal offence, if the person against whom the right is acquired could have consented to the act and rendered it lawful.

The comments in this blog are not intended to suggest that the court was necessarily wrong in its conclusion. But they may suggest that the question has not yet been fully explored, and would merit consideration on appeal.

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Direct payments on common land

Common landPosted by Hugh Craddock Tue, March 17, 2015 07:29:10

Defra announced yesterday a new methodology for calculating payments on common land under the Basic Payments Scheme (BPS, the direct payments subsidy for farmers under pillar 1 of the Common Agricultural Policy). The change means that, from 2015, the whole area of a common will generally be allocated among those who claim on it for the purposes of the BPS. That means a larger notional area for claimants on most commons, and subject to other factors, potentially larger payments.

Defra has also announced that, following a legal challenge to the existing methodology under the Single Payment Scheme (SPS), it has concluded that the methodology used since 2005 was unsound, and that certain commoners may be eligible for compensation.

As the announcement is closely connected with my role in Defra, please refer to the website for further information.

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