Claimant enjoying grazing rights over common under 1954 freehold grant — Defendant farmers enjoying like rights under successive leases renewed between 1994 and 1998 — Priority dispute triggered by imposition of severe restrictions imposed upon designation of common as SSSI — Claimant claiming priority — Defendants contending for rateable reduction of entitlement — Whether claim supported by terms of 1954 grant — Claim dismissed
The first defendant (MB) was the freehold owner of a large estate in Somerset, which included an area of 810 acres known as Porlock Common (the common)*. Historically, a number of tenanted farms enjoyed sheep-grazing rights over the common, including the 113 acre Westcott Farm. This farm, at all material times before 1954, was let on terms (the old lease terms) that spoke of: “The right in common with other tenants of the Lessor to turn out upon Porlock Common& such horses, cattle and other stock as can be properly maintained on the demised premises.” In May 1954, the then owner of the estate sold the freehold of Westcott Farm to the predecessors of the claimant freeholder. The conveyance (the 1954 conveyance), while otherwise repeating the old lease terms, described the grazing right thereby granted as “the right in common with all other persons entitled to a like right”. At the date of the 1954 conveyance, and at all material times until the events giving rise to the dispute, the tenants of three neighbouring farms exercised grazing rights on terms corresponding to the old lease terms. During the 1990s, each of those tenants obtained fresh leases on similar terms.
In May 1992, the common was designated by English Nature as a site of special scientific interest, pursuant to section 28 of the Wildlife and Countryside Act 1981. In May 1996, English Nature, while formally consenting to the claimant grazing his animals on the common, indicated that no more than 292 sheep could be grazed during the winter months, and no more than 435 throughout the rest of the year. Those figures were substantially lower than the number that could be maintained on Westcott Farm alone. Having regard to that restriction, the claimant contended that he alone possessed grazing rights over the common, such claim being based upon the assertion that the rights given by the 1954 conveyance had priority over those derived from the fresh leases. In High Court proceedings, MB and the neighbouring tenants (the defendants) argued that no such priority was conferred by the 1954 conveyance, which, on its proper construction, placed all the dominant farms on an equal footing. On that view, each farm had to submit to a rateable reduction in the number of animals it could put out.
