Woodland – Management – Tree preservation order (TPO) – Claimants seeking felling permission in respect of trees on estate land – Defendant council making TPO covering all trees – Claimants applying to quash TPO – Whether land constituting public open space – Application dismissed
The second and third claimants occupied an estate which included an area of land which was adjacent to land which had been used in the past for quarrying stones for both the estate and the local village. Over time trees had been allowed to grow creating a woodland on the bed of the quarry. The first claimant was responsible for carrying out all works to and maintenance of the land.
In June 2010, the claimants applied to the Forestry Commission for felling permission and a woodland regeneration grant to fell existing woodland which was unmanaged and replant with native species to enhance the area. In response to being consulted about the application, the defendant council made and served a provisional woodland tree preservation order (“TPO”) covering all species of tree on the land. The TPO prohibited the cutting down or lopping of any trees on the land except with the consent of the defendants.
The claimants applied under section 288(1) of the Town and Country Planning Act 1990 seeking an order quashing the TPO. The central issue in the case turned on whether the land in question was “public open space” for the purposes of section 9 of the Forestry Act 1967 so that any woodland management of the land was outwith the jurisdiction of the Forestry Commission. The claimants contended that the right of free access conferred on the inhabitants of the district and neighbourhood by article 5 of a scheme made under the Commons Act 1899 by the defendants on 13 September 1915 had been extinguished and lapsed by reason of their non-registration and/or the non-registration of rights of common to which they were parasitic under the Commons Registration Act 1965.
Held: The application was dismissed.
(1) It was clear that article 5 did not and was not intended to confer on residents of the district and neighbourhood rights of common or any similar rights. Had it purported to do so it would have been ultra vires since the power conferred on the defendants by section 1(1) and 1(2) of the Commons Act 1899 did not extend to making a scheme which conferred rights of common or rights akin to rights of common. Those powers were limited to making schemes “for the regulation and management of any common within their district with a view to the expenditure of money on the drainage, levelling and improvement of the common, and to the making of bye-laws and regulations for the prevention of nuisances and the preservation of order on the commons”. A scheme which purported to confer new rights of common on the inhabitants of the district and neighbourhood would not be a scheme falling within that definition: Lewis v Mid Glamorgan County Council [1995] 1 WLR 3131 considered.
(2) When construing article 5 and the scheme as a whole, regard had to be had to the fact that the enabling legislation which gave the defendants the power to make the scheme did not authorise it to make a scheme which contained a provision which had the effect of conferring rights of common on the residents of the district and neighbourhood. The language of article 5 was unambiguous and clear. It provided that the inhabitants of the district and neighbourhood should have a right of free access to every part of the commons and a privilege of playing games and enjoying other species of recreation thereon, subject to any bye-laws made by the defendants under the scheme. The purpose of the right conferred was to entitle inhabitants to walk over every part of the common and to play games and enjoy other kinds of recreation on the commons and that was also the nature and effect of the right conferred. If the intention had been to create a new right of common or a similar right, it was inconceivable that it would have been left by the maker of the scheme to be conferred as a matter of implication on the coat-tails of the new right of access.
(3) A right of free access over land was conceptually very different from a right of common. It did not follow, from the fact that the purpose for which the powers in section 1 of the 1899 Act were conferred was to make schemes to regulate common land, that any rights of free access conferred by schemes made pursuant to that section automatically lapsed if and when rights over such common land themselves lapsed. A public right of access created for the specific purpose of ensuring access to an open space for the benefit of the public and the neighbourhood was not to be extinguished save by clear words or inescapable implications. Furthermore, the court was not persuaded that the land ceased to be common land by reason of the non-registration under the 1965 Act of the rights of common, or that the fact that the land was registered as waste land of a manor under section 22(1)(b), rather than land subject to rights of common under section 22(1)(a), meant that the right of access conferred by article 5 was thereby extinguished or could not survive: Hampshire County Council v Milburn [1991] 1 AC 325 considered.
(4) The non-registration of the rights of common over the land and their automatic lapse by reason of section 1(2)(b) of the 1965 Act did not have the effect that the land ceased to be common land. The registration of the land under the 1965 Act as common land was deemed by section 10 of that Act to be conclusive evidence of the fact that it was common land. Accordingly, the defendants had not erred in concluding that the land was public open space for the purposes of section 9 of the Forestry Act 1967 and that the public had a right of access to it so that any woodland management of the land was outwith the jurisdiction of the Forestry Commission: Corpus Christi College, Oxford v Gloucestershire County Council [1983] QB 360 followed.
Iain Colville (instructed by Pinsent Masons LLP) appeared for the claimants; Alan Evans (instructed by Carlisle City Council) appeared for the defendants.
Eileen O’Grady, barrister
Norbrook Laboratories Ltd and others v Carlisle City Council
Woodland – Management – Tree preservation order (TPO) – Claimants seeking felling permission in respect of trees on estate land – Defendant council making TPO covering all trees – Claimants applying to quash TPO – Whether land constituting public open space – Application dismissedThe second and third claimants occupied an estate which included an area of land which was adjacent to land which had been used in the past for quarrying stones for both the estate and the local village. Over time trees had been allowed to grow creating a woodland on the bed of the quarry. The first claimant was responsible for carrying out all works to and maintenance of the land.In June 2010, the claimants applied to the Forestry Commission for felling permission and a woodland regeneration grant to fell existing woodland which was unmanaged and replant with native species to enhance the area. In response to being consulted about the application, the defendant council made and served a provisional woodland tree preservation order (“TPO”) covering all species of tree on the land. The TPO prohibited the cutting down or lopping of any trees on the land except with the consent of the defendants.The claimants applied under section 288(1) of the Town and Country Planning Act 1990 seeking an order quashing the TPO. The central issue in the case turned on whether the land in question was “public open space” for the purposes of section 9 of the Forestry Act 1967 so that any woodland management of the land was outwith the jurisdiction of the Forestry Commission. The claimants contended that the right of free access conferred on the inhabitants of the district and neighbourhood by article 5 of a scheme made under the Commons Act 1899 by the defendants on 13 September 1915 had been extinguished and lapsed by reason of their non-registration and/or the non-registration of rights of common to which they were parasitic under the Commons Registration Act 1965. Held: The application was dismissed. (1) It was clear that article 5 did not and was not intended to confer on residents of the district and neighbourhood rights of common or any similar rights. Had it purported to do so it would have been ultra vires since the power conferred on the defendants by section 1(1) and 1(2) of the Commons Act 1899 did not extend to making a scheme which conferred rights of common or rights akin to rights of common. Those powers were limited to making schemes “for the regulation and management of any common within their district with a view to the expenditure of money on the drainage, levelling and improvement of the common, and to the making of bye-laws and regulations for the prevention of nuisances and the preservation of order on the commons”. A scheme which purported to confer new rights of common on the inhabitants of the district and neighbourhood would not be a scheme falling within that definition: Lewis v Mid Glamorgan County Council [1995] 1 WLR 3131 considered.(2) When construing article 5 and the scheme as a whole, regard had to be had to the fact that the enabling legislation which gave the defendants the power to make the scheme did not authorise it to make a scheme which contained a provision which had the effect of conferring rights of common on the residents of the district and neighbourhood. The language of article 5 was unambiguous and clear. It provided that the inhabitants of the district and neighbourhood should have a right of free access to every part of the commons and a privilege of playing games and enjoying other species of recreation thereon, subject to any bye-laws made by the defendants under the scheme. The purpose of the right conferred was to entitle inhabitants to walk over every part of the common and to play games and enjoy other kinds of recreation on the commons and that was also the nature and effect of the right conferred. If the intention had been to create a new right of common or a similar right, it was inconceivable that it would have been left by the maker of the scheme to be conferred as a matter of implication on the coat-tails of the new right of access.(3) A right of free access over land was conceptually very different from a right of common. It did not follow, from the fact that the purpose for which the powers in section 1 of the 1899 Act were conferred was to make schemes to regulate common land, that any rights of free access conferred by schemes made pursuant to that section automatically lapsed if and when rights over such common land themselves lapsed. A public right of access created for the specific purpose of ensuring access to an open space for the benefit of the public and the neighbourhood was not to be extinguished save by clear words or inescapable implications. Furthermore, the court was not persuaded that the land ceased to be common land by reason of the non-registration under the 1965 Act of the rights of common, or that the fact that the land was registered as waste land of a manor under section 22(1)(b), rather than land subject to rights of common under section 22(1)(a), meant that the right of access conferred by article 5 was thereby extinguished or could not survive: Hampshire County Council v Milburn [1991] 1 AC 325 considered.(4) The non-registration of the rights of common over the land and their automatic lapse by reason of section 1(2)(b) of the 1965 Act did not have the effect that the land ceased to be common land. The registration of the land under the 1965 Act as common land was deemed by section 10 of that Act to be conclusive evidence of the fact that it was common land. Accordingly, the defendants had not erred in concluding that the land was public open space for the purposes of section 9 of the Forestry Act 1967 and that the public had a right of access to it so that any woodland management of the land was outwith the jurisdiction of the Forestry Commission: Corpus Christi College, Oxford v Gloucestershire County Council [1983] QB 360 followed.Iain Colville (instructed by Pinsent Masons LLP) appeared for the claimants; Alan Evans (instructed by Carlisle City Council) appeared for the defendants.Eileen O’Grady, barrister
