Commons Act 2006 – Rights of common – Registration – Appellants applying to register register rights of common over certain land – Land in question already registered as common under Commons Registration Act 1965 – Application refused – Effect of transitional provisions in Schedule 3 to 2006 Act – Whether possible to register new rights of common over existing registered common land – Appeal dismissed
In 2010, the appellants applied to the respondent council, under the Commons Act 2006, to register a right to graze cattle and sheep over three parcels of registered common land on Dartmoor. They claimed to have acquired the rights by prescription, through long use by themselves and the first appellant’s father up to April 2001.
The respondents refused the application after receiving legal advice to the effect that a right of common could not be acquired by prescription after 2 January 1970 over land that had been registered as common land under the 1965 Act. They concluded that the application therefore fell outside the scope of the transitional provisions in para 2(2)(a) of Schedule 3 to the 2006 Act, providing for the registration of unregistered rights of common created after the registers were originally drawn up under the 1965 Act.
The appellants applied for judicial review of that decision, contending that the respondents had taken an unduly restrictive interpretation of the legislation which interfered with their proprietary rights contrary to Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights and the Human Rights Act 1998.
Dismissing the claim, the judge held that: (i) the aim of the 1965 Act was to produce a conclusive register of common land and the rights of common which existed over it as at 31 July 1970, so that, consistently with that aim, rights which were not registered could no longer be exercised by virtue of section 1(2)(b); (ii) the purpose of Schedule 3 to the 2006 Act was to provide a brief window within which the commons register could be updated and corrected by incorporating any registrations which could have been, but had not been, made under the 1965 Act, and that thereafter any unregistered rights would be extinguished under para 3, thus repeating the legislative approach in section 1(2)(b) of the 1965 Act; and (iii) the 2006 Act was not intended to revive rights of common which were not capable of registration under the 1965 Act. She concluded that A1P1 was not engaged, either because no propriety rights ever came into existence or because the rights had been extinguished before the Human Rights Act 1998 came into force: see [2015] EWHC 730 (Admin); [2015] PLSCS 101. The appellants appealed.
Held (Sir Terence Etherton dissenting). The appeal was dismissed.
(1) The 2006 Act abolished prescription as a means of creating a right of common, save in three specifically excluded areas, and circumscribed the circumstances in which rights of common could, in future, be created by express grant. Accordingly, any prescriptive right on which the appellants relied had to have been acquired under the 1965 Act; however, on the proper construction of its provisions, the appellants could not have acquired the claimed rights in that way.
Under the Commons Registration Act 1965, it was not possible to register new rights of common over land that had already been registered under that Act as common land. That was the effect of the regulation 3(2) of the Commons Registration (New Land) Regulations 1969, made under section 13 of the 1965 Act, so far as it provided, in respect of land for the time being registered under the 1965 Act, that “no application shall be entertained for the registration of rights of common over it”.
The effect of section 1(2)(a) of the 1965 Act was that, if land was capable of being registered under that Act but was not so registered, then after 31 July 1970 it ceased to be common land. Registration was conclusive evidence that the land was common land, and non-registration was conclusive evidence that it was not: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674; [2006] 2 EGLR 95 applied.
The wording of section 1(2)(b), providing that “no rights of commons shall be exercisable over any such land unless they are registered” had the effect that, after 31 July 1970, no unregistered rights of common could be exercised over land which was registered as a common: Central Electricity Generating Board v Clwyd County Council [1976] 1 WLR 151; [1975] 2 EGLR 104 considered. If such rights could not be exercised, then any person who claimed to have acquired a prescriptive right of grazing over registered common land was attempting to establish a right in reliance on activity that was precluded by section 1(2)(b), contrary to the general principle that an easement or profit a prendre could not be acquired by doing something that was prohibited by a public general statute. The essential question was whether the landowner could lawfully have granted the right which was said to give rise to the easement or profit. In the case of a registered common, he could not have done so, because section 1(2)(b) precluded the grant, after 1970, of an exercisable right of common.
In short, that meant that no right of common over land registered as common land could now be acquired by prescription. Because a right of common was not exercisable over a registered common unless it was registered, and because it could not be registered under the 1965 Act, it followed that it could not be acquired.
That outcome was consistent with the legislative purpose of having a definitive register of common land and town and village greens. If unregistered, and unregistrable, rights of common could exist, that would render the system of registration all but pointless; far from being a definitive register of rights of common, it would be a trap for the unwary: Oxfordshire County Council v Oxford City Council [2005] EWCA Civ 175; [2006] Ch 43; [2005] 2 EGLR 91 applied.
Nicholas Le Poidevin QC (instructed by SW Law Solicitors Ltd, of Ivybridge) appeared for the appellants; Stephen Whale (instructed by the legal department of Devon County Council) appeared for the respondents.
Sally Dobson, barrister
