Common land — Rights of common — Extent of rights of grazing — Right to graze two horses — Commoner erecting electric fence to contain horses — Whether erection of electric fence on common a trespass — Section 194 of Law of Property Act 1925 — Whether erection of fence on common land with ministerial consent depriving landowner of action in trespass at common law — Whether lord of manor entitled to remedy of injunction
The claimant was the owner of a manor that included a village green. In 1999, the defendant purchased a farm adjoining the green. Attached to the farm were grazing rights for, inter alia, two horses; these rights had been registered under the Commons Registration Act 1965. Shortly after purchasing the farm, the defendant erected temporary electric fencing on that part of the village green that contained her horses within an area of no more than a quarter of an acre. The claimant brought proceedings alleging trespass and breach of section 194 of the Law of Property Act 1925. In relation to section 194, the defendant had applied, under that provision, to the Secretary of State for consent to enclose the land with the electric fence.
Held: The claimant was entitled to an injunction and nominal damages. The electric fencing, in effect, kept the claimant from possession of his land. Enclosing land by a fence cannot be regarded as a method of exercising one’s rights as a commoner: trespass had been committed. The minister’s consent under section 194 of the 1925 Act would operate to deprive the local authority, the lord of the manor, or other interested persons of the statutory remedy provided by section 194(2) because it would be a condition of the availability of that remedy that the work has been done without consent. However, ministerial consent would not take away or cut down a right of action in trespass at common law by the owner of the land. The electric fence was “a fence” within the meaning of section 194. The defendant’s acts did not merely constitute trespass against the claimant, but also a summary offence under section 12 of the Inclosure Act 1857 and a public nuisance under section 29 of the Commons Act 1876. The appropriate remedy was an injunction to restrain the trespass.
The following cases are referred to in this report.
Behrens v Richards [1905] 2 Ch 614
John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P&CR 104; [1980] 1 EGLR 102; 253 EG 151
Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853; [1987] 2 All ER 569, CA
Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411; [1970] 1 All ER 483
Colin Sydenham (instructed by Birketts, of Ipswich) appeared for the claimant; Edward Cousins (instructed by Ashton Graham) represented the defendant.
Giving judgment, Judge Langan QC said:
Introduction
[1] Depden Green is an area of some 38 acres in the village of Depden, which lies between Bury St Edmunds and Haverhill. It is, in the technical sense of the term, a village green, that is to say, privately owned land that is subject to a customary right for the inhabitants to use the land for recreational purposes. The green is also subject to grazing rights, which have been duly registered under the Commons Registration Act 1965. For land to be both a village green and common land is unusual. One of the witnesses told me that grazing rights are exercisable over only six of the 175 village greens in the county of Suffolk.
[2] The claimant is the lord of the manor of Depden, and the owner of the freehold interest in the green. The defendant owns a property known as Grove Farm, which is adjacent to the green. She has, by virtue of her ownership of Grove Farm, a right to graze two horses on the green. She has, from time to time, erected on the green a temporary electric fence within which her horses graze. She says that, at any one time, no more than a quarter of an acre is enclosed by this fence. The principal question that I have to decide is whether she is acting lawfully when she erects such a fence. The claimant’s case is that he is entitled to an injunction to restrain her from doing so.
[3] Conveyancing history
(1) Claimant’s title
The Manor of Depden was purchased by the claimant’s father, to whom I shall refer as Mr Rabett Snr, from Earl Jermyn, the then heir to the Marquis of Bristol, on 31 January 1983. Mr Rabett Snr died on 2 December 1993, and, on 16 March 1994, his executors assented to the vesting of the manor in the claimant.
(2) Registration of grazing rights
The grazing rights that are now vested in the defendant were registered under the Commons Registration Act 1965 on 2 January 1970, the registration becoming final on 1 August 1972. The applicant for registration was Fred Walter Staveley, of Grove Farm. The right of common registered was a right to graze four cattle or 16 sheep or two horses. The land over which the right was registered as being exercisable was the whole of the village green. The land to which the right was attached was Grove Farm.
(3) Defendant’s title
The defendant purchased Grove Farm from Mr Staveley on 29 October 1999.
Events following the defendant’s purchase
[4] The defendant keeps four horses. Soon after she purchased Grove Farm, she put up temporary electric fencing on the green. She arranged the fencing, and has done so since, so as to form a rough circle. There are two or three fairly stout wooden posts with a much larger number of white plastic poles. Two strands of tape containing the electric wiring are strung through slots on the plastic posts. The upper strand, it seems, is 4ft or a little more above ground level. Both strands are, when the current is switched on, electrified.
[5] As the defendant accepted in evidence: “A person who touched the fence would get a nasty shock. The fence keeps horses in and people out.” |page:144|
[6] On or about 27 November 1999, the claimant visited the defendant. He took exception to two matters, the erection of the fencing and the fact that, at times, the defendant was grazing three horses on the green. The defendant says that the claimant agreed with her that provided she moved the fencing every two weeks, she could retain it. The claimant says that, on the contrary, he made it clear that the fencing was to be removed and not to be reinstated.
[7] On 5 December 1999, the claimant wrote, to the defendant’s solicitor, a letter in which he objected to the erection of fencing by her and asserted: “The only method of grazing permitted on the green is by the daily tethering of the animals.” This was followed by a letter from the claimant’s solicitor to the defendant on 22 February 2000. Again, her right to erect any fence on the green was disputed. On 23 February 2000, the defendant replied, at some length, by letter to the claimant’s solicitor. I do not propose to read it out. It is, however, to be observed that the defendant did not, in that letter, raise any issue as to an agreement allegedly made with the claimant in November 1999.
[8] The proceedings in this case were issued on or about 7 April 2000. The relief sought was an order that the defendant immediately remove fencing on the land and that she should limit the number of horses to two. The evidence suggests that the defendant has grazed an excessive number of horses on only a few occasions and then for only a few hours at a time. I am confident that she will not engage in excessive grazing in future. She does not, at present, have fencing erected on the land, but she maintains that she is entitled to do so.
[9] Claim
(1) General
[10] The claim is put under two heads: trespass at common law and section 194 of the Law of Property Act 1925. Trespass has not been formally pleaded, but the evidence upon which it is possible to come to a conclusion on the issue is complete, and I propose to deal with it notwithstanding the arguably deficient state of the pleadings.
(2) Trespass
[11] The claimant’s case is very simple. Trespass is an interference with possession. As the owner of the soil of the green, he is, subject to any overriding rights of other parties such as parishioners or commoners, entitled to possession. By her erection of fencing, the defendant has interfered with that right to possession.
[12] The defendant’s answer is that her actions are de minimis and cannot properly be characterised as an interference with the claimant’s right to possession. Reliance is placed upon the relatively small area enclosed, the fact that the fencing is intermittent — for sometimes there is none — the fact that the fencing is what might be called ambulatory, so that no part of the green is permanently or even habitually enclosed, and the relatively lightweight nature of the material used.
[13] Enclosure, even if temporary, is, in my judgment, as clear an example as one can get of interference with the right of another to possession of his or her land. As the defendant herself very frankly acknowledged in evidence, in a passage that I have already quoted, the effect of erection of fencing is to keep people out. Among the persons excluded is the claimant, notwithstanding that he is the freehold owner of the area enclosed. This really speaks for itself.
[14] It is said on behalf of the defendant that the tethering of horses on the common is, so far as the exercise by a commoner of a right to graze is concerned, lawful, even though it may be undesirable on humanitarian grounds. Since members of the public would, if sensible, not approach a tethered horse, what she does by way of enclosure is no more than create a tethering circle. In my judgment, the two activities cannot be equated in this way. From quite a distant period of English history, the concepts of common and enclosure have been directly contrary one to the other. To enclose, for whatever purpose, cannot possibly be regarded as a method of exercising one’s rights as a commoner.
[15] Accordingly, I conclude that the claim of trespass has been made good.
(3) Section 194 of the Law of Property Act 1925
[16] The other head under which the claim is brought is section 194(2) of the Law of Property Act 1925. This is a little-known provision; indeed, I have to confess that to me it was entirely unknown until this case was opened. Section 194 is headed “Restrictions on enclosure of commons”. To understand section 194(2), one must first look at section 194(1), which, so far as material, provides:
The erection of any building or fence or a construction of any other work whereby access to land to which this Section applies is prevented or impeded shall not be lawful unless the consent of the Minister thereto is obtained.
The relevant minister is now the Secretary of State for the Environment, Transport and the Regions.
[17] Section 194(2) provides a statutory remedy in certain circumstances. So far as material, that subsection reads:
Where any building or fence is erected, or any other work constructed without such consent as is required by this section, the county court within whose jurisdiction the land is situated shall, on an application being made by the council, of any county or county borough… or district concerned, or by the lord of the manor, or any other person interested in the common, have power to make an order for the removal of the work, and the restoration of the land to the condition in which it was before the work was erected or constructed…
[18] The position in this case is that the defendant has applied to the Secretary of State for consent to the erection of fencing. I have been told that the Secretary of State has come to a decision, but that the decision is not yet known or promulgated.
[19] The parties have therefore argued this abstract question: if such consent were to be given, would it prevent the claimant from obtaining an injunction to require the defendant to take down the fencing? It is accepted that if the answer to this question is in the affirmative, the court should not make an injunction, at any rate under section 194, until such time as the Secretary of State refuses, if he does refuse, to accede to the defendant’s application.
[20] The issue of statutory interpretation required the court to determine the extent, if any, to which an order made under section 194(1) interferes with private rights. The view of Mr GD Gadsden in his work on the law of commons, is that section 194(1) does not have this effect: see paras 8.33 and 9.35. The view of the Department of the Environment is to the same effect. This is to be found in material emanating from the department in the trial bundle, at pp63, 91 and 94. I have heard submissions from counsel, and for reasons that I shall shortly set out, I have come to the conclusion that the views expressed by Mr Gadsden and on behalf of the department are, broadly speaking, correct.
[21] The submission of Mr Edward Cousins, appearing for the defendant, is encapsulated succinctly in two sentences in para 8 of his skeleton argument:
It is the defendant’s case that on a true construction of the section, consent, once granted by the minister, over-rides the private rights of the claimant. Once the minister’s consent is obtained, the fencing erected by the defendant no longer constitutes an act of trespass against the claimant’s interest in the land.
[22] I accept at once that a statute is capable of interfering with private rights and that it may do so by implication as well as expressly. I do not, however, accept that it is necessary or right to read section 194(1) as having the extensive effect for which Mr Cousins contends. There is, in my judgment, considerable force in the point taken by Mr Colin Sydenham, appearing for the claimant, that the language of section 194(1) is prohibitary rather than enabling. It is framed in terms primarily directed to forbidding interference with common land, rather than in terms that create a right to interfere. In my judgment, clear words would be required to take away the rights of the landowner or, indeed, the rights of other commoners.
[23] It must, I think, be right to say that the consent of the minister would operate to deprive the local authority, or the lord, or others interested, of the particular statutory remedy provided by section 194(2), because it is a condition of the availability of that remedy that the work has been done “without such consent as is required |page:145| by this Section”. Subject to that qualification, I accept Mr Sydenham’s submissions. In particular, I accept the submission that a consent under section 194(1) would not take away or cut down a right of action in trespass at common law.
[24] One other point has been taken by Mr Cousins on section 194 with which I shall deal. It is said that the activities of the defendant did not amount to the erection of a fence by reason of the lightweight nature of the construction of the object and the temporary and mobile nature of the object to which I have already referred.
[25] I disagree. The concept of “fence” in this legislation is a functional one. A fence is something that encloses land and excludes other persons from that land. In this sense, what the defendant in this case did was very plainly to erect a fence.
Remedy
[26] The principles governing the grant of an injunction to restrain trespass are to be found in the decision of the Court of Appeal in Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853. The relevant passages are to be found in the judgment of Balcombe LJ on pp858 and 859. At p858, Balcombe LJ asked rhetorically what were the principles that a court should apply in a case of trespass. The answer he gave was that, prima facie, a landowner whose title is not in issue is entitled to an injunction to restrain trespass on his land whether or not the trespass harms him. In support of that proposition, Balcombe LJ invoked two, then comparatively recent, first instance decisions, one of which was Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411, the other of which was John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P&CR 104*.
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* Editor’s note: Also reported at [1980] 1 EGLR 102; (1979) 253 EG 151
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[27] Reference was also made to a much older decision of Buckley J in Behrens v Richards [1905] 2 Ch 614, dealing with the ability of the court to refuse to grant an injunction to restrain persons from trespassing on land if the landowner was not injured thereby.
[28] In so far as it was necessary for him to reconcile conflicting lines of authority, Balcombe LJ said that, in normal circumstances, the prima facie test should be that indicated by Stamp J in Woollerton but that there might be exceptional circumstances in which the court would not think it appropriate to grant an injunction. In Woollerton, Stamp J had said, at p413E:
It is in my judgment well established that it is no answer to a claim for an injunction to restrain a trespass that the trespass does no harm to the plaintiff. Indeed, the very fact that no harm is done is a reason for rather than against the granting of an injunction: for if there is no damage done the damage recovered in the action will be nominal and if the injunction is refused, the result will be no more nor less than a licence to continue the tort of trespass in return for a nominal payment.
[29] Trespass having been established, it is therefore for the defendant to show that there are some exceptional circumstances that militate against the grant of relief by way of injunction. The principal points taken by Mr Cousins may, I think, be reduced to these. First, that the claimant consented to the defendant having fencing on the green provided that she moved the fencing every two weeks. Second, there are certain matters of past conduct, principally on the part of Mr Rabett Snr, and, to a much more limited extent, on the part of the claimant himself. Third, there is a collection of lesser points: that the trespass has been de minimis, that the fencing is temporary, and that damages would be an adequate remedy. I deal with these three matters in turn.
[30] First, as to consent. I have considered the evidence of the parties. In so far as there is a conflict between them, I prefer the evidence of the claimant as to the events of the autumn of 1999. I find it almost inconceivable that the claimant would have written the letter that he did write in early December had he made some kind of agreement of the kind alleged by the defendant a few weeks earlier. I find it wholly inconceivable that if such an agreement had been made, the defendant would not herself have relied upon it in correspondence. The case may well have been one of misunderstanding. I make it absolutely clear that I am not saying, nor implying, nor do I think, that any part of the defendant’s evidence has been dishonestly given.
[31] Second, the past conduct of Mr Rabett Snr and of the claimant himself. There is, in the court bundle, a list of matters said by the witness, Mr Marlow, to have occurred in or around the common over a period of 20 years up until April 2000. Only two are, in my judgment, of any possible relevance to this case. One has to do with the folding of sheep on the common. This was done at the instigation of Mr Rabett Snr. Sheep belonging to his family farming company were kept on the common. The area over which they grazed was moved from time to time. This was regarded by Mr Rabett Snr as the best way of keeping the common in good condition. This activity ceased in or around 1991 upon objections being raised by other inhabitants, in particular by Mr Marlow, who has been a witness in this case.
[32] The other matter has to do with the keeping of sheep within fencing on the common by Mr Staveley, who was the defendant’s predecessor in title. This had occurred during the lifetime of Mr Rabett Snr and continued for a year or so after his death. It came to an end in 1994.
[33] In my judgment, neither of these matters should deflect the court from the grant of an injunction. In general, the acts relied upon are the acts of Mr Rabett Snr, not the acts of the claimant. The claimant was involved only to the extent of acquiescing in the continuance, for a short period, of an arrangement that had been made between Mr Rabett Snr and Mr Staveley. All the relevant acts had ceased some time ago. All had to do with sheep and none with horses. There is no question of the defendant having been led to believe that the claimant had established, or acquiesced in, what might be called a liberal regime, under which he would set aside his rights as owner and raise no objection to the fencing of any part of the common.
[34] So far as the third group of points taken by Mr Cousins is concerned, if one sets these points against the statement of Stamp J in Woollerton, there are, it seems to me, reasons that militate for, rather than against, the granting of an injunction. Against all these points taken by Mr Cousins, one may set these matters. The activities of the defendant have been deliberate. She has chosen in court to assert that she has what amounts to a limited right to enclose part of the common. Further, her acts are not merely trespasses as against the claimant, they constitute a summary offence within section 12 of the Inclosure Act 1857 and a public nuisance under section 29 of the Commons Act 1876. This is not a case in which a claimant seeks an injunction to restrain the commission of a criminal offence or the continuation of a public nuisance, but the fact that the defendant’s activities are unarguably within each of these categories must, in my judgment, strengthen his hand when he seeks to have the discretion of the court exercised in his favour in private law proceedings.
[35] So, weighing up all these factors, I have come to the conclusion that the only just result in this case would be to grant an injunction restraining the defendant from erecting fencing on the common and to make an award of damages for trespass in the nominal amount claimed, which is £5.00.
