Commons registration–Enclosure award of 1822 attacked as being formally invalid–Special provisions in local Act as to determination of boundaries conclusive in themselves–But in any case, the general provisions of the Inclosure Act 1801 as to formalities were directory only, not imperative–The courts ‘lend their weight to uphold longstanding awards not challenged at the time’–Registration of moor as common vacated
This was an
appeal by Fisons Horticulture Ltd, of Grosvenor Street, London W1, and 14 other
freehold owners of land in the area of Crowle Waste or Crowle Moors, Crowle,
Humberside, against a decision of the chief commons commissioner (Mr G D Squibb
QC) dated January 24 1975 (Ref No 24/D/17-31) confirming the registration as
common land under the Commons Registration Act 1965 of 600 acres of the moor on
the application of the respondent, Mr William Bunting, of Periplaneta, Silver
Street, Thorne, Doncaster.
Mr J R
Griffiths QC and Mr I McCulloch (instructed by Holloway, Blount & Duke)
appeared for the appellants, and Mr J Rankin QC and Mr J R MacDonald
(instructed by Pearlman Grazin & Co, of Leeds) represented the respondent.
Giving
judgment, WALTON J said that the appeal concerned 600 acres of turf and peat
moor known as Crowle Waste or Crowle Moors, which had at one time been common
land but had been enclosed under an award of June 17 1822. The respondent had
registered the area as common land and the registration had been reluctantly
upheld by the chief commons commissioner, who had observed that the application
to register was ‘lacking in merits’ and ‘would work serious general
inconvenience, or even injustice’ if it were allowed to prevail.
Under section
35 of the Inclosure Act 1801, which governed the proceedings of 1822, an
enclosure award had to be (inter alia) proclaimed the next Sunday after
it had been made in the church of the parish in which the lands divided and
allotted should be, from the time of which proclamation only, and not before,
such award should be considered as complete. The relevant local Act, the Crowle
Inclosure Act 1813, further provided by section 59 that the award, when
executed and enrolled in the manner directed by the Act of 1801, should be
enrolled by the steward of the manor of Crowle, and that the award, with a plan
of the lands directed to be allotted and enclosed, should within one month
afterwards be deposited in a tin box in the parish church of Crowle. There was
a question as to the parish in which the moor lay. In a local Act of 1811 the
‘Crowle Yorkshire Common’ was expressly stated to be in the parish of Hatfield
and by implication the Turf Moors were also in that parish. These were two
adjoining areas, of 250 acres and 400 acres respectively, which bounded the 600
acres on the eastern side. A map of 1888, on the other hand, showed the 250
acres and the 400 acres as being in the parish of Crowle and the 600 acres as
being in the parish of Thorne. The commissioner held that there was no evidence
as to how those changes had arisen, but it was sufficient for present purposes
to observe that neither in 1811 nor in 1888 were the 600 acres regarded as
falling within the parish of Crowle. The commissioner also found that although
there was a certificate that the award was read in Crowle church on June 23
1822, there was no certificate that it had been read in any other church or
that it was enrolled with the clerk of the peace of the West Riding or the
courts of record at Westminster, and there was no record of enrolment in the
county record office at Wakefield. In these circumstances, the commissioner
held that there was no evidence that the statutory provisions were complied
with in relation to the 600 acres, and that the evidence that the provisions
were strictly complied with in relation to land in the parish of Crowle indicated
non-compliance in relation to the land not in that parish. He stated, obviously
rightly, that whether non-compliance with those provisions had the effect of
invalidating the award regarding the 600 acres depended on whether the
provisions were regarded as imperative or merely directory; and he went on to
hold that as the land was still in its virgin state and there was ‘no omelette
to unscramble,’ the provisions were imperative, the award had not been shown to
be valid, and the registration must be confirmed.
There was
obviously considerable doubt as to which parish comprised the lands in
question, but it was clear that the provisions of the relevant Acts ensured
that the fixing of doubtful boundaries could be done only after the greatest
possible publicity. The commissioner had neglected the fact that there was, in
the minds of the framers of the 1813 Act, some uncertainty as to the precise
lands to be enclosed, and special powers were conferred on the enclosure
commissioners to determine the boundaries; not an arbitrary power, but one
capable of being exercised in a discretionary manner and subject to proper
rights of appeal. In those circumstances he (his Lordship) thought that the
right conclusion to be derived from all the evidence before the chief commons
commissioner was that the 1813 commissioners duly exercised their powers to
determine the proper boundaries, and they having done so, that must be the end
of the matter. He would add that in his opinion the courts would lend their
weight to uphold long-standing awards if they were unchallenged at the time.
Reading the provisions in the Act of 1813, he found it impossible to think that
if for any reason the making of the award had not been proclaimed in the
requisite church on the next Sunday after it was executed, the whole award
would have been null and void. It appeared crystal clear that the provisions
were to be read as directory to ensure, as far as possible, early publicity. In
the age in which those Acts operated there could be no doubt that publicity for
the actings of the commissioners would be rife. The countryside would be ablaze
with tales of injustices they had done. It was no use merely looking at the
form of words which were used to decide whether requirements in an Act were
mandatory or directory. One had to look at the whole setting of the Act to
answer the question whether compliance with the particular requirements was so
fundamental to the purpose which the Act was designed to secure that
non-compliance rendered what was done under it null and void. In his judgment
the requirements of section 35 were in any event directory and not mandatory,
and the fact that they were not complied with, if that was the case, was nihil
ad rem. The award was clearly executed by the commissioners, and that was
all that was required to establish that the rights of common were extinguished.
The appeal would accordingly be allowed and the registration vacated.
