Land registered as common land — Land adjacent to dwellinghouse — Whether land ancillary to dwellinghouse — Whether commissioner misdirected himself — Whether ordinary purchaser would consider land as part of the property purchased — Application granted
The case concerned land at Fox Barn, Cholesbury, Tring, Herts. The area in dispute (“the objection land”) was approximate 100m2. The property originally comprised a dwelling with a barn together with ancillary land and was known as Home Farm and the objection land between the track and the barn was part of the northern curtilage of that property. The barn was converted into a dwelling known as Fox Barn in 1980. The present owner of Fox Barn sought rectification of the register, which had included the objection land and was adjacent to it had been used for car parking. It was separated from the rest of the registered common land by the track. The commissioner stated in his decision that the question whether the objection land was part of the freehold of Fox Barn was irrelevant to the question before him, ie was the land from August 5 1945 until 1980 part of the garden of Home Farm and since 1980 part of the garden of Fox Barn. It had been argued on the owner’s behalf that since cars were often parked in gardens by their owners, car parking on the property frontage constituted use as a garden. The commissioner disagreed stating that, in his opinion, the parking of a car in a garden did not detract from its overall use as a garden, but the converse did not apply. Land used solely or mainly as a car parking area was not a “garden” by virtue of that use. It was clear that the objection land was not being used as a garden ancillary to any dwellinghouse and accordingly the requirement of section 1(2) of the Common Land (Rectification of Registers) Act 1990 did not apply. By that Act, objection to inclusion in the register of common land under the Commons Registration Act 1965 could be made where, inter alia, land was ancillary to a dwellinghouse and that requirement had been satisfied at all times since August 5 1945. Further, land was ancillary where it was a garden, private garage or out-buildings used and enjoyed with the dwellinghouse, which included a building consisting of two or more separate dwellings. The applicant appealed.
Held The application was granted.
1. The determination was on a point of law as to whether the decision of the Commons Commissioner had been correct in law.
2. The Commons Registration Act 1965 had not been well thought out and it had been necessary to provide machinery for deregistering wrongly registered land under the Act. The machinery had been provided by the 1989 Act.
3. The Act had defined what was meant by the term “ancillary to a dwellinghouse”.
4. The evidence before the commissioner, in the instant case, showed that the parcel was treated as ancillary to a dwellinghouse in conveyances going back to 1921.
5. The commissioner stated that the question was irrelevant and asked himself whether the objection land was part of a garden.
6. At that point the commissioner misdirected himself. When one bought and sold property, in ordinary terms, the land which went with that property was part of a garden.
7. The land might or might not be cultivated, but did not need to be cultivated: see Cresstock Investments Ltd v Commons Commissioner [1992] 1 WLR 1088.
8. The expression “whether land was part of a garden” should be used with the utmost common sense, ie whether someone buying the property would regard it as part of a garden.
9. Used in that sense the land in this case was part of a garden.
Samuel Parrish (instructed by Dawson & Co) appeared for the applicant; the respondents did not appear and were not represented.
