Commons registration–Land on Welsh shore of Dee estuary–Registered as ‘common land’ though no ‘rights of common’ registered under any appropriate Act–Commissioner’s decision upholding registration held wrong
This was an
appeal by the Central Electricity Generating Board from a decision of Mr H E
Francis QC, sitting on March 26 1974 as a Commons Commissioner, by which the
registration as common land of Dee Marsh Saltings on the Welsh shore of the Dee
estuary was upheld and confirmed. The registration was made on July 17 1970
under the provision of the Commons Registration Act 1965 by Flintshire County
Council, predecessors of the respondents to the appeal, Clwyd County Council.
Mr A C Sparrow
QC and Mr G Lightman (instructed by the CEGB solicitor) appeared for the
appellants. The respondents did not appear and were not represented.
Opening the
appeal, Mr Sparrow said that the case related to some 135 acres of estuarine
land in the borough of Flint known as Dee Marsh Saltings. The land was bounded,
in part, on the south-west by the railway line which ran between Chester and
Holyhead. Though it originally formed part of the Manor of Englefield, which
belonged to the Crown, the land was severed from the manor, as to a part on the
seaward side by the River Dee Acts, and as to the remainder by a conveyance of
July 1931, the land eventually being vested in the Dee & Clwyd River Board.
It was conveyed by them to the CEGB in April 1962. The only application to
register the land as common land was made on behalf of Mr John Winston Thomas,
owner of Pentre Farm, Chester Road, Flint, on May 21 1970. This application was
out of time. There was still time, however, for the registering authority
itself to register the land as common land without any application, and in fact
Flintshire County Council did so on July 17 1970. By section 22 (1) of the Act
of 1965, ‘common land,’ unless the context otherwise required, meant ‘(a) land
subject to rights of common . . . and (b) waste land of a manor not subject to
rights of common.’ The commissioner was
not prepared to accept that open and uncultivated land remained manorial waste
once it had ceased to form part of a manor, and he thought that the question
for him to decide was whether the saltings were subject to rights of common
just before July 17 1970. Among the factual evidence presented to him were
petitions to Parliament in 1696 against a Dee Improvement Bill. These included
a petition of ‘the poor commoners using and enjoying Saltrey Marsh and the
commons in the County of Flint adjoining the River Dee.’ Pentre Farm was a small farm of some 26
acres, situated for the most part south of the railway. Mr Thomas testified
that he and his father used the land for the grazing of cattle and sheep
throughout the year, and that this had always been as of right. Alderman Thomas
Fish said that during his life the whole area had been grazed by cattle, sheep
and horses belonging to neighbouring farms, and that fishermen, in the days
when they used horse traps for selling their fish, grazed their horses on the
land. They also used it for drying out their nets. Members of the public had
habitually used the land for recreation, and some used to shoot wildfowl over
the land until this was prohibited by the British Electricity Authority in
about 1950. Counsel for the CEGB, in addition to its documents of title, put in
some documentary evidence to show that its predecessors in title, the Dee &
Clwyd River Board, had granted grazing licences to four farmers. He also put in
evidence a 1953 deed by which the river board granted a right of shooting
wildfowl.
The
commissioner took the view that the evidence was sufficient to establish the
fact that the land was on July 17 1970 ‘land subject to rights of common’
within the meaning of the statutory definition. Faced with this, Mr Lightman
had submitted on the board’s behalf that the only right of common, if any, established
by the evidence was a right of grazing appurtenant to Pentre Farm, and that
this right was lost when Mr David Thomas, the father of the present owner,
purchased a piece of land to the north of the railway line from the British
Transport Commission in 1956. Reliance was placed on the rule recently applied
by Buckley J in White v Taylor [1969] 1 Ch 150 that where the
owner of a common appurtenant purchased part of the servient tenement over
which his common rights were exercisable, that brought his right of common to
an end in respect of the whole of the land affected. The commissioner held that
that submission would not avail Mr Lightman unless the premise on which it was
based–that Mr Thomas as the owner of Pentre Farm alone had a right of common
over the land–was correct. In the commissioner’s view that premise was not well
founded, because the evidence satisfied him that not only the owner of Pentre
Farm but also the owners of other neighbouring farms had common rights of
grazing over the land. The commissioner was also not satisfied that the right
of common exercisable by the owner of Pentre Farm was a common appurtenant as
distinct from a common appendant. It also appeared to the commissioner that the
rule relied on by Mr Lightman only operated where the land was part of the
common at the date of purchase by the commoner, and that the 23 acres purchased
by Mr David Thomas in 1956 had long ceased to be part of the common. For these
reasons he affirmed the registration.
Broadly
speaking, the case was concerned with estuarine land on the north side of the
railway. The commissioner found that the land was unfenced and at spring tides
was inundated by the sea coming up the estuary. By January 2 1970, the last day
under the Act for an application, nothing whatever had happened by way of
registration of rights of common. But about this time this part of North Wales
became caught up in a titanic struggle between the CEGB on the one hand and
local authorities on the other, because the board proposed to erect on the land
a nuclear power station. The Flintshire County Council resolved to oppose the
project tooth and nail. On May 21 1970 Mr Thomas, of Pentre Farm, purported to
register the site of the proposed power station as common land, but his
application was out of time. However, the county council stepped in and
exercised their statutory power to validate Mr Thomas’s invalid registration.
They made the same registration themselves on July 17 1970. The proposal for a
nuclear power station was rejected by the Secretary of State for Trade and
Industry in July 1972, but the registration remained. He (counsel) would point
out that the form of the proceedings was such that there were no pleadings,
there was no discovery, and in a sense there was not even a writ. The form of
registration of the land as common land–if it was intended, as it was later
treated as intending, to have operation in relation to rights of common–gave
the CEGB no indication whatever either of the claimants to the rights or of the
nature of the rights claimed. It was submitted that the county council’s
registration was bad because there were no rights of common registered which
would serve to back it. Section 1 (2) (b) of the Act provided that ‘no rights
of common shall be exercisable . . . unless they are registered either under
this Act or under the Land Registration Acts 1925 and 1936.’ No such rights had been registered by
anybody, either in due time or at all. To allow confirmation of a registration
of land as common land when there could be no exercise of common rights over it
must lead to an absurd result, and the registration should accordingly be
cancelled.
Giving
judgment, GOFF J said that by virtue of section 4 (5) of the Act of 1965 the
county council’s registration was provisional only until it should become final
under ensuing provisions. The local authority did not purport to register
rights of common over the land, nor indeed were they entitled to do so. They
registered the land as common land, and nobody else registered any rights of
common within due time or at all. Section 1 (2) (b) provided that ‘no rights of
common shall be exercisable . . . unless they are registered either under this
Act or under the Land Registration Acts
registered under those Acts. Section 22 of the 1965 Act provided that unless
the context otherwise required, ‘common land’ meant ‘(a) land subject to rights
of common . . . and (b) waste land of a manor not subject to rights of common.’ The commissioner went into oral and
documentary evidence about alleged rights of common, and also a submission made
on behalf of the CEGB that if there were any rights they had been extinguished,
because the person entitled to them had purchased part of the servient
tenement. He decided first that there were rights, and secondly that they had
not been extinguished. The CEGB came to the court prepared to argue, if need
be, that as a matter of law, the court ought to find the commissioner was wrong
in finding that there were rights of common; and further, that as a matter of
law he was in any event wrong in reaching the conclusion that the rights, if
any, had not been extinguished in the way contended for–this possibly involving
the court in a difficult question concerning rights appendant and rights
appurtenant. But in his (Goff J’s) view, the first submission made by the
appellants was right, namely, that the commissioner misdirected himself and
that he ought to have refused to confirm the registration, because it was a bad
registration. This disposed of the whole matter and made it unnecessary to
proceed with the other points, on which the court had therefore not heard
argument.
The local
authority was entitled to register right down to July 31 1970, but the
registration was only provisional, and therefore when objection was taken the
court had to decide whether or not the land was properly registered. Objection
being taken, the court then had to see whether the land which the local
authority purported to register as common land was in truth common land. The
commissioner expressly found as a fact that the land was not waste land of any
manor not subject to rights of common. Therefore the registration could be
supported only if the land was land subject to rights of common. Turning back
to section 1 (2) (b), and taking into account the time-limit on applications
for registration of common rights, one found that no such registration had been
applied for in due time, and indeed none was ever made. If there were no rights
of common exercisable over the registered land it was not common land, and the
local authority’s registration, though made in due time, was accordingly a bad
registration. It followed that when the dispute was referred to the
commissioner there was only one answer which he could properly give, namely
that he should refuse to confirm the registration. It was true that the
commissioner’s confirmation meant that in the absence of any appeal the
registration would have become conclusive under section 10, so that whether or
not there were in truth any rights of common the land would have been
conclusively presumed to be common land. But one did not get as far as section
10. The matter was halted immediately upon objection. It remained only to
notice that the local authority had not come to the court to support the
commissioner’s decision, but, this being an appeal, that did not of itself
entitle the appellants to judgment. Mr Sparrow had rightly assumed the burden
of satisfying the court that the decision was wrong, and had discharged that
burden. The appeal would be allowed and an order made refusing to confirm the
registration.
Mr Sparrow
said that his clients did not seek any order as to costs.
In a further
judgment delivered on May 22 1975, Goff J recalled the circumstances of the case
and observed that when the county council registered the land as common land
whatever rights of common there might have been over it were bound within a
short time to become inoperative by virtue of section 1 (2) (b) of the Act. By
the time the commissioner came to deal with the matter, that paragraph had
taken full force and effect, and no rights of common having been registered,
none could thereafter be registered. In order to mount his objection Mr
Sparrow, for the board, had had to show that the effect of the paragraph was to
extinguish unregistered rights, so that thereafter the land was no longer
subject to rights of common, and he (Goff J) had delivered a judgment in which
he expressed the view that counsel had discharged that burden. Shortly after the
earlier appeal hearing, however, it had come to Mr Sparrow’s notice that the
Clwyd County Council, as successors to the Flintshire County Council, had in
their hands a letter from the Department of the Environment in which arguments
to the contrary were propounded. Counsel had very properly drawn that fact to
the court’s attention, and he (his Lordship) had therefore restored the matter
for further hearing.
What appeared
to be suggested was that it was right for the commissioner to look only at
matters as they stood at the date of registration: if he confirmed the
registration it could stand, notwithstanding the failure to register any rights
of common, and it could not be amended under section 13 of the Act, because
that could only apply if there was some change of circumstance or something
outside the failure to register rights of common. He (his Lordship) could not
accept that view. It seemed to him that if the commissioner were right in
looking only at that date, and therefore confirming the registration, the
confirmation would be conclusive evidence that the land was common land at the
time of registration, but nothing more. Accordingly, when the rights of common
ceased to be exercisable the land would cease to be common land, and that would
lead inevitably to an unanswerable application to amend the register. Of course
land might be registered as common land although there were no rights of common
over it, because the definition included ‘waste land of a manor not subject to
rights of common.’ But that was not this
case. The department’s letter also drew attention to the provisions of section
6 (3), dealing with the cancellation of registration as common land, and of
section 12 paragraph (b), and it was said that if the argument outlined were
not correct one would expect to find some similar automatic provision in the
Act applying to the case of land ceasing to be common land through a failure to
register any rights of common over it. He (Goff J) was satisfied that there was
nothing in that argument. The cancellation of the registration of land as
common land did not affect any question of ownership, and the provisions of
section 6 (3) were required to deal with that situation. Reference was also
made to section 5 (7), which provided that an objection to the registration of
any land as common land or as a town or village green should be treated as
being also an objection to any registration under section 4 of any rights under
the Act. It was pointed out that there was no converse provision. However, that
seemed to him (his Lordship) to have no weight. An objection to the
registration of any land as common land was a complete attack upon its status,
and must involve objecting to any rights of common registered over it, but the
converse was not true. An attack on a right of common registered over land did
not necessarily involve attacking the whole status of the land as common land.
In his (Goff
J’s) judgment, therefore, at the time when the commissioner heard the matter
the land was not subject to rights of common, and on that ground alone the
commissioner ought to have refused to confirm the registration. But Mr Sparrow
had raised further points. He submitted that the registration was in any event
inherently bad, because one could not register land as common land on the
ground that it was subject to rights of common unless there was upon the
register a registration of rights of common, or the authority when registering
it as common land did register such rights. It was not necessary for him (his
Lordship) to determine that question in this case. It was a difficult one,
there was no respondent here to argue to the contrary, and the answer might be
important in other cases. He therefore declined to express a view upon that
issue one way or the
wrong on the first point–on the ground that the decision was wrong in law. Only
one person claimed at the hearing a right of common, and that was Mr Thomas.
But the board proved that he had bought part of the common, and it was clear
from the case of White v Taylor [1969] 1 Ch 150 that that had the
effect of destroying his right if it was a right appurtenant. In finding that
the 23 acres purchased by Mr Thomas’s father in 1956 had long ceased to be part
of the common the commissioner might have been confusing the position with the
fact that, as he had found, this part of the land had ceased to be manorial
waste. If he was saying that the land had ceased to be part of the common,
there was no evidence of that at all. All the evidence was evidence of user
which, if it supported anything, showed an appurtenant and not an appendant
right.
On the facts,
had any right of common been established over the property in question? The commissioner said that the evidence
satisfied him that not only the owner of the Pentre Farm but also the owners of
other neighbouring farms had rights of grazing over the land. In his (Goff J’s)
judgment, the onus lay on the respondents when the registration was challenged
to allege and prove at least one right of common exercisable over the property.
No specific right was formulated, none was registered and none was produced or
adumbrated at the hearing. The decision failed to specify the nature of the
common rights which were found to exist beyond saying that they were rights of
grazing. It was not sufficient, to support registration, to say, ‘There has
been a lot of user, and therefore one must assume that somebody has got a
right.’ The right ought to be properly
formulated and properly found. There was of course evidence of user of the land
for pasturage of cattle, but there was very considerable evidence showing that
there was no right. It was clear, and the commissioner found, that a number of
facts told heavily against there being any rights of common. Many other facts
were neutral in themselves. They might have been enjoyment as of the right, or
they might have been indulgence by a more or less absent landowner, but they
took their colour from the combination of circumstances in which they were
found to occur. Taking that colour, he (his Lordship) had concluded that there
was not sufficient evidence to support the commissioner’s finding that the land
was subject to rights of common within the meaning of the statutory definition,
even if the finding was not defective for want of particularity. Even,
therefore, if he (Goff J) were wrong in his premise that the registration
should not have been confirmed because the rights had all ceased to exist at
the time of the hearing, which was the relevant time, still in his judgment it
ought not to be confirmed. He therefore adhered to his decision to allow the
appeal, reverse the decision of the commissioner, and refuse to confirm the
registration.
Mr Sparrow
said that as before the board did not ask for costs.
