Commons – Section 193 of Law of Property Act 1925 – Claimant owning site of former flour mill with prospects of redevelopment as waterside apartments – Site forming part of larger area of meadows over which right to aftermath conferred on trustees by private inclosure Act of 1808 – Whether land over which right existing a “common” protected by section 193 – Whether right extending over claimant’s land – Whether claimant entitled to declaration that no public rights of access existing over its land – Claim allowed in part
The claimant was the registered proprietor of two former flour mills on land that lay between the River Severn and the Mill Avon; mills had stood on the land since the 16th century. The mill site formed part of a larger area containing meadows, which had historically been used as a common. An inclosure Act of 1808 had excepted the meadows from inclosure but had provided for trustees to be appointed and conferred on them an exclusive right to the aftermath, namely the right to graze animals on the second grass or hay crop that sprang up after the first mowing. A right of common to that effect had been registered in favour of the trustees in 1970. The meadows subsequently became vested in the first defendant council.
The claimant, which wanted to redevelop its site for waterside apartments, brought proceedings for declarations that no public rights of access existed over its land. The central issue was whether the land, or any part of it, was a common protected by section 193 of the Law of Property Act 1925. The defendants were the first defendants and the trustees, although the latter played no part in the proceedings.
Held: The claim was allowed in part.
(1) The 1808 Act created an exclusive right to the aftermath, by which the landowners of the meadows were precluded from depasturing their own beasts on the land for a period after the end of the hay harvest. At common law, the right so created was not a right of common strictly so-called but was a right of “sole vesture” or sole pasture. However, when the 1925 Act was enacted, the terminology relating to commons, rights of common and commonable lands was loose. A right of sole pasture was frequently spoken of as a right of common and land over which such a right was exercisable was popularly described as “commonable”: Johnson v Barnes (1872) LR 7 CP 592 applied. Accordingly, the land over which a right of sole vesture was exercisable could properly be described as a common, and such a right had, for practical purposes, the same nature as a right of common.
(2) The meadows over which a right of sole vesture was exercisable were capable of being a “common” to which section 193 applied. The different expressions “commons” and “land subject to rights of common” in section 193(1) were doubtless intended to mean different things. Assuming that land subject to rights of common referred to land over which rights of common in the strict sense were exercisable, a “common” could include other land, such as that over which there was a right of sole vesture. The reference to “commonable rights” within the provisos to section 193(1) should also be construed as including rights of sole vesture, such that if the right were extinguished, leaving no right exercisable over the land, public rights of access to the land would also cease. However, the differently worded provisions of section 194, which were stated to apply only to land that was “subject to rights of common”, did not apply to the meadows.
(3) Since the 1808 Act referred to a meadow, and created a right of grazing, it was intended to apply only to land that could fairly be described as “meadow” and that was, at the date of the Act, could be used for grazing. On the evidence, parts of the claimant’s land had not fallen within that description at the date of the 1808 Act, such that the right created by that Act had never applied to it.
(4) As to other parts of the claimant’s site, the rights created by the 1808 Act had been extinguished at common law prior to the coming into effect of section 193 in January 1926, such that section 193 had not applied to those parts. Although section 193 would only cease to apply to land over which commonable rights existed where those rights were extinguished under “any statutory provision”, and not where the extinguishment took place only at common law, the section did not apply where the rights of common or analogous rights had ceased to exist at common law before its provisions came into force. The rights under the 1808 Act had been extinguished at common law over parts of the claimant’s land prior to 1926 by unity of ownership, where the trustees and the then landowner had been parties to a conveyance under which both the land and the right in the land became vested in the same party, or by implied release, in that the construction of permanent structures on the land, which was inconsistent with a right to graze or mow, had met with no protest from the trustees: Tehidy Minerals Ltd v Norman [1971] 2 QB 528, Re Yateley Common, Hampshire (1976) 241 EG 537 and Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259 considered. The claimant was entitled to the declarations it sought in respect of those parts of its land to which section 193 did not apply.
William Ainger (instructed by Thomson Snell & Passmore, of Tunbridge Wells) appeared for the claimant; Tamsin Cox (instructed by Hedleys Solicitors, of Leatherhead) appeared for the first defendant; the trustee defendants did not appear and were not represented.
Sally Dobson, barrister
