Common land – Scheme giving management of common to local authority – Rights of commoners not including right of vehicular access over common – Construction of scheme – Rights of landowners not to be expropriated without express words – Application of council dismissed
The defendants were the owners of Bucklebury Common and the land had been owned by the family of the first defendant since 1540. A dispute arose as to the effect of a scheme made in 1929 investing the management of the common in the predecessor in title of the plaintiff council.The council sought a declaration that on the construction of the scheme, in particular of para 9, and the Commons Act 1899, they alone had lawful authority to grant to the residents of houses adjacent to the common rights of vehicular access over the land. Those residents had no other means of access to their houses. The council argued that the scheme as a whole had the effect of giving them the exclusive right to sue for trespass and that therefore the owners of the common, the defendants, were deprived of such a right.
The defendants contended that (1) as owners of the legal estate in fee simple of the soil of the common, subject to the rights of the commoners, they were entitled to grant easements and licences over the land so long as they did not thereby interfere with the rights of the commoners; (2) the rights of the commoners did not include a vehicular right of way across the common to adjoining land unless such a right had been granted to them by the owners of the common; and (3) there was nothing in the scheme or Act conferring a right of way on adjoining owners or entitling the council to confer such a right, or depriving the defendants of their common law right to grant easements and licences over the common land.
Held The application was dismissed.
1. The power given by the scheme to the council was a power to manage the common and did not extend to granting rights of vehicular access across the common to land which was not part of the common. The scheme was consistent with the right of the owner to object to or give consent to activities over his land, subject to rights of public enjoyment over the land. Rights of landowners were not to be expropriated save in the clearest terms: see Attorney-General v Amherst (1897) 23 Sol Jo 443. The landowner’s right to object to trespassers was no doubt a valuable right but the scheme did not empower the council to take away rights of a profitable nature in a common unless the scheme provided compensation.
2. The defendants were entitled to object to any use of vehicular access not authorised by them, or acquired under a prescriptive right, irrespective of any right purported to be granted by the council.
3. The words ‘without lawful authority’ in para 9 (g) of the scheme meant without the authority of the owner of the common: see Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14 per Dillon LJ at p17.
David Mole QC and Paul Stinchcombe (instructed by the solicitor to Newbury District Council) appeared for the plaintiffs; Edward Nugee QC and Gabriel Fadipe (instructed by Charles Lucas & Marshall, of Newbury) appeared for the defendants.
