Enclosure — Rights of common — Council duty to manage common land — Report made to council that common unlawfully fenced off — Council decision requiring fencing to be removed — Application challenging decision — Whether council took account of all relevant matters — High Court holding that resolution of council to be quashed
From 1975 the applicants were owners of White Cat Cottage, Horstead Keynes. There was a plot of land opposite the cottage which formed part of the roadside verge. A report was made to the leisure services committee of the council which asserted that the land was registered as common land under the Commons Registration Act 1965; that the council were obliged to maintain it free from enclosure; and that the owners of the cottage had unlawfully fenced off part of the land and had declined to discontinue their encroachment. The report recommended that an order be sought in the county court to require the fencing to be removed. The committee resolved to seek such an order. The applicants applied for judicial review of that decision.
The land in question had been registered as final on October 1 1970. No rights of common had by then been registered so any that had previously existed ceased to be exercisable on that date. The management of the common was vested in the council which by clause 4 was under a duty to maintain the common free from all encroachments and or other enclosure of any part of it. By the early 1970s the land was derelict and being used as a tip when the applicants bought and moved into the cottage on the other side of the road. Under section 30 of the Commons Act 1876 the county court had jurisdiction to hear any case relating to any illegal enclosure on a common and to grant an injunction. The council took the view that they could avail themself of the provisions of section 30.
Held The council resolution quashed.
1. Section 30 of the 1876 Act no longer had any application to this land. No rights of common had been exercisable over it since the entries in the register maintained under the 1965 Act became final on October 1 1970. At that date the land ceased to be within the definition of land subject to be enclosed under the Enclosure Act 1845 and for that reason ceased to be a common for the purposes of the 1876 Act.
2. The court was not a tribunal of fact but in deciding whether a decision taken was lawful it needed to know what was taken into account before the decision was taken. For that purpose the court had to be provided with a basis of fact before it could reach its judgment. From the primary facts the court inferred that much that the applicants wanted members of the committee to know was not brought to their attention.
3. Those matters were material to the decision they had taken in that the decision could not properly be taken without taking them into account.
4. The council’s inactivity for many years did not deprive them of the right to invoke the assistance of the courts in aid of the scheme. A statutory duty was not extinguished by failure to exercise it for however long. Whether the court would grant relief was within its discretion. But the fact that proceedings could be brought was not of itself determinative of whether they should be brought. A decision whether to authorise proceedings required the committee take into account that the council had for many years neglected the scheme and that the applicants’ activities on the land had subsisted for many years without objection.
Anthony Bradley (instructed by Hextall Erskine & Co) appeared for the applicants; Robin Campbell (instructed by the solicitor to Sussex County Council) appeared for the council.
