Commons Registration Act 1965 — Common Land (Rectification of Registers) Act 1989, section 1(2) — Notice of objection
stone cottages, unoccupied for the past 20 years, derelict and unfit for human
habitation, were now registered under the 1965 Act in the register of town and
village greens — Notice of objection to their inclusion in the register were
given in accordance with section 1 of the 1989 Act — An inquiry was held by a
commons commissioner — The 1989 Act required as a condition of its application
that there should be a ‘dwellinghouse’ on the land — The commissioner decided
that ‘dwellinghouse’ in this context meant a building actually dwelt in or at
least capable of being dwelt in — As the four old cottages were not within this
category, the 1989 Act did not apply to them, ie the objection to their
conclusion in the register failed — The commissioner stated a case to the High
Court
dictionary definitions and in concluding that the expression ‘dwellinghouse’
contemplated actual use and enjoyment of the premises — He thought that this
view was supported by the words ‘used and enjoyed’ in section 1(3) in relation
to gardens, private garages and outbuildings — As a matter of ordinary language
‘dwellinghouse’ includes not only a house which is dwelt in but also a house
which is constructed or adapted for dwelling in, although at the material time
it might be vacant or even not fit and ready for occupation — The words ‘used
and enjoyed’ in section 1(3) in reference to a garden did not necessarily
connote actual use and enjoyment; the purpose of the words was to define the
link that must exist between the garden (private garage or outbuildings) and
the dwellinghouse in order to qualify as ancillary land — The commissioner
erred in law in deciding that the requirements of the 1989 Act were not
satisfied in respect of the cottages — Declaration accordingly
The following
cases are referred to in this report.
Ford v Barnes (1885) 55 LJKB 24
Morleys
(Birmingham) Ltd v Slater [1950] 1 KB 506
This was a
case stated by a commons commissioner, Mr Martin Roth, following an inquiry and
the commissioner’s conclusion that derelict cottages at 1-4 White Row Cottages,
Bewerley, N Yorks, were not ‘dwellinghouses’ which came within the Common Land
(Rectification of Registers) Act 1989. This conclusion, if correct, meant that
objection could not be taken to their inclusion in a register of town and
village greens under the Commons Registration Act 1965.
Martin Rodger
(instructed by May May & Merrimans) appeared on behalf of the applicant,
Richard Henry Piers, 17th Viscount Mountgarret.
Giving
judgment, MUMMERY J said: On Greenow Village Green at Bewerley in North
Yorkshire there are four stone-built cottages. They are well over 100 years
old. They have never had any running water or indoor sanitation. There had been
a communal stone-built privy about 25 yds away, but that collapsed some time
ago and the stone has been removed. The cottages are in a derelict state. The
stone structure and stone-tiled roofs are largely intact, but there are no
windows or secure outer doors. The cottage at the north-east end of the row
once had a two-storey extension at the rear; that has collapsed and some of the
stone tiles have recently been removed.
The cottages
have not been occupied for the last 20 years or so. Four notices dated February
2 1970 were given under the Housing Act 1957 condemning the cottages as unfit
for human habitation and incapable of being made fit at reasonable cost. Two of
the cottages had already been vacated by then. The other two had ceased to be
occupied by 1972.
In recent
years numerous inquiries have been made by people interested in restoring the
cottages for occupation. The obstacle to the sale and renovation of the
buildings is the existence of the registration of them and of the land on which
they stand as forming part of Greenow Village Green. Registration is in the
land section of the register unit VG 104 in the Register of Town and Village Greens
maintained by North Yorkshire County Council under the Commons Registration Act
1965 (‘the 1965 Act’).
In section
22(1) of the 1965 Act ‘town or village green’ is defined as follows:
. . . land
which has been allotted by or under any Act for the exercise or recreation of
the inhabitants of any locality or on which the inhabitants of any locality
have a customary right to indulge in lawful sports and pastimes or on which the
inhabitants of any locality have indulged in such sports and pastimes as of right
for not less than twenty years.
The relevant
period of 20 years referred to is the period immediately prior to the passing
of the 1965 Act. That Act was passed on August 5 1965, so that the immediately
preceding period of 20 years takes one back to August 5 1945.
The buildings
and land, along with the rest of the village green, were registered on the
application of the parish council. In the ownership section of the register the
parish council is registered as owner of the whole of the land comprised in the
register unit. The registration was not disputed at the time. Registration
became final on August 1 1972 and became conclusive evidence of the matters
registered: see sections 7 and 10 of the 1965 Act. Under the 1965 Act there are
no grounds available in this case either for amending the register under
section 13 or for rectifying it under section 14 so as to exclude the four
cottages or the land on which they stand from the register.
On July 21
1989 the Common Land (Rectification of Registers) Act 1989 (‘the 1989 Act’)
came into force. It is a short Act. I need refer only to the first section of
it. Section 1(1) provides:
Within three
years after the passing of this Act any person may, by notice in writing given
to the registration authority maintaining a register of common land and of town
and village greens under the Commons Registration Act 1965, object to the
inclusion on either of the registers of the whole or part of any land in respect
of which the requirements specified in subsection (2) below are satisfied.
(2) Those requirements are —
(a) that —
(i) there is a dwellinghouse on the land and, if
and so far as the land is not the site of that dwellinghouse, it is ancillary
to that dwellinghouse; or
(ii) the land is ancillary to a dwellinghouse
which is not on the land; and
(b) that the requirements of paragraph (a)
above have been satisfied at all times since August 5 1945.
Subsection (3)
provides:
For the
purposes of subsection (2) above land ancillary to a dwellinghouse means a
garden, private garage or outbuildings used and enjoyed with the dwellinghouse;
and in that subsection ‘dwellinghouse’ includes a building consisting of two or
more separate dwellings.
It is not
necessary for me to refer to the remainder of that section or to the other two
sections of the Act.
The procedure
under the 1989 Act; as set out in the Act and as prescribed under regulations
made under it, which came into force in March 1990, was set in motion on July 5
1990, when notice of objection was given by Viscount Mountgarret to the
inclusion of 1-4 White Row Cottages in the register. On September 7 1990 the
objection was referred by North Yorkshire County Council to a commons
commissioner, who held an inquiry at Harrogate on December 5 1990. At the
inquiry he heard representations from counsel on behalf of Lord Mountgarret and
from representatives of the parish council. There was also before the commons
commissioner, Mr Martin Roth, a letter from the Open Spaces Society making
representations against the notice of objection. The commons commissioner
inspected the properties.
On December 14
1990 he gave his written decision in which he set out in lucid detail the
background and procedural history of the matter, his findings of fact, the
relevant statutory provisions and a summary of the submissions which had been
made to him. He stated his conclusion in these terms:
I reach the
conclusion that the word ‘dwellinghouse’ in the 1989 Act means a building which
is actually dwelt in or is at least capable of being dwelt in. I have no
hesitation in deciding that the building which was occupied as four dwellings
until some 20 years ago but which was then condemned as unfit for human
habitation and has since remained unoccupied does not satisfy the requirements
of the 1989 Act.
He went on to
make observations about the shortcomings of the 1989 Act. He stated that, in
his view, the result was unsatisfactory as it meant that the cottages would
remain derelict. Both Lord Mountgarret and the parish council wanted to see the
cottages restored, but the properties had been rendered sterile by the
existence of the registration. The council had even expressed the fear that the
properties might be occupied by squatters.
It was therefore
decided to take the matter further. On January 15 1991 a request was made on
behalf of Lord Mountgarret to the commons commissioner to state a case on a
point of law for the decision of the High Court. A case was stated on February
27 1991 in which the point of law was formulated by the commons commissioner in
these terms:
The question
of law for the decision of this honourable court is whether on the facts found
by me I erred in law in holding that the requirements specified in section 1(2)
of the Act of 1989 were not satisfied in respect of any part of the land to
which this objection related.
I was informed
by counsel that this is in fact the first occasion on which the 1989 Act has
come before the High Court on the case-stated procedure.
The point of
law stated may be rephrased as follows in respect of each of the four cottages
by specific reference to the relevant statutory requirements in section 1(2):
Has there been a dwellinghouse on the land in question at all times since
August 5 1945? Are these cottages
dwellinghouses when there is no one dwelling in any of them?
The commons
commissioner considered two authorities in which the meaning of the word
‘dwellinghouse’ had been discussed in different statutory contexts: Morleys
(Birmingham) Ltd v Slater [1950] 1 KB 506, a decision on the Rent
Restrictions Acts, and Ford v Barnes (1885) 55 LJKB 24, a case on
the Representation of the People Acts. He also referred to various dictionary
definitions and concluded that the word dwellinghouse contemplated the actual
use and enjoyment of the premises in question. On that basis the cottages were
dwellinghouses during the respective periods of occupation but ceased to be
dwellinghouses when they became empty. They have not been dwellinghouses ‘at
all times’ since August 5 1945 and therefore fall outside the scope of the 1989
Act.
He found
support for this construction in the words ‘used and enjoyed’ in section 1(3)
in relation to gardens, private garages and outbuildings used and enjoyed with
the dwellinghouse. In his view, those words meant actual use and enjoyment of
the gardens, private garages and outbuildings in question. It was, therefore,
‘logical to conclude that actual use and enjoyment of the dwellings is also
contemplated’.
In my
judgment, the commons commissioner construed the provisions of section 1 of the
1989 Act too restrictively. In some statutory contexts and often in ordinary
everyday language ‘dwellinghouse’ is indeed used to describe a house in which
people are actually living as a private residence. Actual residential occupancy
is not, however, a necessary characteristic of a dwellinghouse.
As a matter of
ordinary language dwellinghouse is capable of including not only a house which
is dwelt in but also a house which is constructed or adapted for dwelling in
although it may at the relevant time be vacant or even not fit and ready for
occupation. For example, a family may be forced out of their dwellinghouse by
fire, flood or other natural disaster. The house may remain empty for a long period
while building works are carried out on it. I do not think it would be a misuse
of the English language to say of such a house that it was at all times, even
when empty, a dwellinghouse.
Turning to the
language of the 1989 Act I note three things:
(1) There is no statutory definition of
‘dwellinghouse’; section 1(3) says that a dwellinghouse includes a building
consisting of two or more separate dwellings, but it does not define the word.
(2) There is no express statutory requirement in
the 1989 Act that the dwellinghouse in question is resided in or occupied or
inhabited or in actual use as a place of abode for the relevant period. This is
to be contrasted with legislation in which such requirements are sometimes
imposed in express terms.
(3) In the absence of any statutory definition
the word dwellinghouse should be construed in its ordinary meaning both in the
context of the particular statutory provision and of the 1989 Act as a whole.
Adopting that
approach, I conclude that the 1989 Act operates in the following fashion in
this case. Nos 1-4 White Row Cottages were dwelling-houses at all times during
the period from August 5 1945 to the respective dates on which they were
vacated, that is 1968 in the case of two of the cottages and 1971 and 1972 respectively
in the case of the other two. After they were vacated the cottages did not
cease to exist; they were not demolished; they were not converted to other
uses, such as use as a shop or warehouse or office. The physical structure,
character and nature of the cottages remained the same, save that they were
empty, neglected and became tumbledown. I do not think that they ceased to be
dwelling-houses simply because they were not dwelt in. They became dilapidated
dwelling-houses but were still dwelling-houses, as distinct from other sorts of
houses such as public houses or warehouses.
In my
judgment, this result is more consistent with the object of the 1989 Act than
the result which follows from the decision of the commons commissioner. The
provisions of the 1989 Act are designed to provide a procedure for removing
from the registers maintained under the 1965 Act certain land on which there is
a dwelling-house or land ancillary to a dwelling-house. Such a procedure for
rectification of the register is not, as I have already observed, available
under the 1965 Act, even in cases where it transpires that the land in question
never was appropriate to be entered on the register but has been entered on the
register in the absence of any objection made at the relevant time.
It is clear,
having regard to the definition of ‘town or village green’ in section 22 of the
1965 Act, that it never was appropriate to register 1-4 White Row Cottages as
part of Greenow Village Green. This was so whether the cottages were at the
relevant time dwelt in or were empty. I cannot discern any sensible purpose in
Parliament seeking to draw a distinction between a house which is lived in for
the whole of the relevant period and a house which is constructed for living in
but is not in fact lived in at all times during the relevant period and I do
not think that Parliament did in fact draw any such distinction.
As to the
reference in section 1(3) to a garden, private garage or outbuildings ‘used and
enjoyed’ with the dwellinghouse, I do not think that these words necessarily
connote actual use and enjoyment any more than the word dwellinghouse in this
context necessarily connotes actual residence. Again, as a matter of ordinary
English, I do not think that ‘used’ and ‘enjoyed’ are synonymous with being
used and enjoyed or actual use and enjoyment.
In the context
of section 1(3) the purpose of the expression ‘used and enjoyed’ is to define
the link that must exist between the garden,
qualify as ancillary land. Thus, for example, a garden which is not used and
enjoyed in relation to any dwellinghouse would not qualify as ancillary land
within the meaning of section 1 of the Act.
In this case
the commons commissioner found that there were small front gardens with no
walls fronting on to a track which runs across the village green. They should
be removed from the registration along with the cottages. I should add that,
before me, the claim for removal of ground at the rear of the cottages was not
pursued. This was rightly conceded, since the commons commissioner had found as
a fact that there was no definable area of garden ground at the rear of the
cottages.
For these
reasons I decide that on the question of law stated for my decision the commons
commissioner erred in law in holding that the requirements specified in section
1(2) of the Act of 1989 were not satisfied in respect of any part of the land
to which this objection related. I hold that those requirements were satisfied
in respect of 1-4 White Row Cottages and the front gardens of those cottages
enclosed by the low walls that separate the gardens from the track across the
village green.
Declaration
accordingly, commissioner to notify the registration authority. No order for
costs.
