Dance v Savery and others

Rights of common – Grazing rights – Commons Registration Act 1965 – Commons Act 2006 – Appellant applying to register rights under 1965 Act over three parcels of land – Appellant claiming right to graze defined number of animals on two parcels with straying rights over third – Claimant registering right to graze over second parcel with no reference to other two parcels – Whether registration conferring stand-alone right to graze animals on second parcel – Whether rights covering all three parcels – Appeal allowed in partIn 1969, the appellant applied to register certain rights of common over three parcels of land on Dartmoor, pursuant to section 4 of the Commons Registration Act 1965. The claimed rights were to graze 56 bullocks or ponies and 224 sheep over two of the parcels with straying rights over the third. Provisional entries were made in respect of each parcel. The entry for the first parcel showed a right to graze the defined livestock over that and the second parcel, together with a straying right over the third. The entry for the second parcel mirrored those terms; that for the third identified a right to stray the defined livestock onto that parcel from the other two.Objections to the provisional entries were referred to a commons commissioner. In 1983, he confirmed the right to graze on the first two parcels, and in 1985 he gave his decision on the third. He expressed the view that a right to stray was a popular way of describing a right of common by reason of vicinage and that such a right was not registrable under the 1965 Act. Following a concession by the landowner, the commissioner modified the wording of the entry for the third parcel, providing a right for the defined livestock to “graze” rather than to stray on that land, and deleted any reference to the other two parcels.A dispute arose as to the proper interpretation of that entry. The appellant maintained that he enjoyed a grazing right for 56 bullocks or ponies and 224 sheep over that parcel, separate from any right that he enjoyed over the other two. The first respondent insisted that the right was shared across all three parcels, so that the claimant could not graze more livestock on the third parcel than he would have been able to by sharing his rights over the other two.The judge accepted the respondent’s argument that the right to graze was shared across all three parcels, so that the appellant could not graze more livestock on the third parcel than he would have been able to by sharing his rights over the other two: see [2011] EWHC 16 (Ch); [2011] PLSCS 12. The appellant appealed.Held: The appeal was allowed in part. (1) There was nothing in the 1965 Act or the 1966 Regulations which expressly required an entry in the rights section of one register unit to refer to all other register units or areas over which the same right was exercisable. By contrast, regulation 4(7) of the 1966 Regulations and Form 3 in those Regulations made clear that, where a right was exercisable only over part of the land in the register unit, that part of the land had to be identified. The 1966 Regulations required an applicant for registration of a right of common to identify all the land over which the right was claimed, whether by reference to a plan or other register units but it was clear that that was for the administrative convenience of both the applicant and the registration authority. It avoided the need for a separate application for each register unit in respect of the same right of common. It enabled the registration authority, by reference to a single application form, to make the appropriate entry in the rights section of each relevant register unit; and, where any part of the area was not included in an existing register unit, alerted the registration authority to the need to create a new register unit.Although the reference in section 15(3) of the 1965 Act to future determination by parliament anticipated further legislation bearing on the number of animals entitled to be grazed, section 15(3) strongly supported the conclusion that the specified number of animals in respect of which a grazing right had been registered was only an upper limit and was not determinative of whether the right was a separate right or a split right. That position had not been changed by either the Commons Act 2006 or the Commons Registration (England) Regulations 2008. (2) The 2006 Act had not been enacted to make the register even more conclusive than before. Section 18(5) of the 2006 Act provided for the first time express statutory recognition of what was implicit in the 1965 statutory scheme, namely that the register was not conclusive as regards the absence of constraints on the exercise of a right of common if no such constraints were registered. Whatever the position under the 1965 Act and the 1966 Regulations, the effect of section 18(5) of the 2006 Act was that the wording of an entry on the register in the present case did not preclude a limitation that the registered grazing right was a split right and not a wholly separate right. That conclusion was not inconsistent with the requirement in section 3(4)(a) of the 2006 Act that, in the case of a right of common, “the nature of the right” had to be registered. Reading the 2006 Act as a whole, and especially having regard to section 18(5), “the nature of the right” in section 3(4)(a) did not include all the limitations on the exercise of the right. The expression “the nature of the right” in section 3(4)(a) meant the type of common right being claimed, such as whether it was a common of pasture (grazing right), pannage, estovers, turbary or piscary: Corpus Christi College, Oxford (President and Scholars) v Gloucestershire County Council [1983] QB 360 and Bettison v Langton [2001] UKHL 24; [2001] PLSCS 120; [2002] 1 AC 27 considered.(3) However, the judge had erred in concluding that the appellant’s registered right of grazing was split over all three parcels of land. Accordingly the appeal would be allowed to the extent that the declaration in the judge’s order would be altered to provide that the grazing right was split with only one of the other specified parcels.Mark Wonnacott (instructed by SW Law Solicitors, of Lee Mill Industrial Estate) appeared for the appellant; John Summers (instructed by Harold Michelmore Solicitors) appeared for the respondents.Eileen O’Grady, barrister