Register of common land — Objection to inclusion — Inadvertent expropriation or dedication to public use of private land — Rectification of register sought — Whether land used as grazing ancillary to and part of dwellinghouse — Whether such land came within the definition of garden for purposes of rectification — Whether owner proving requisite use and enjoyment — Decision against owner by commons commissioner — Owner’s appeal dismissed — Registration upheld
From May 1990, F and his wife had been the owners of a dwellinghouse called Freshfields in the parish of Horsted Keynes, West Sussex and of a substantial area of land adjoining it. The land owned by F was roughly triangular. It was bounded on the south-west by a railway line, on the north-east by Monteswood Lane and on the east and south-east partly by a road called Freshfields Lane and partly by a belt of trees. The total area was just under 24 acres. The dwellinghouse itself and its immediate grounds fronted on Monteswood Lane and were in the eastern part of the triangle. Immediately to the east of them was a piece of land which did not belong to F and took a bite out of the triangle. On that triangular piece was a house called Wild Boar. The remainder of the land owned by F consisted of fields. Part of the land was registered as common land under the Commons Registration Act 1965 (the objection land). F claimed that the objection land was part of his garden and applied to the commons commissioner to rectify the register under section 1(2)(a)(ii) of the Common Land (Rectification of Register) Act 1989. The commissioner visited the site and concluded that F had failed to show that the land had been used and enjoyed as a garden with Freshfields House, however one defined that word and refused application to rectify the register. F appealed against that decision by way of case stated. Section 1(1) of the 1989 provided that any person might by notice in writing, given to the registering authority maintaining a register of common land object to the inclusion of land in respect of which certain requirements were satisfied. One of those requirements was that the land was ancillary to a dwellinghouse which was not on the land (section 1(2)(a)(ii)). For the purpose of that requirement land ancillary to a dwellinghouse meant a garden, private garage or buildings used and enjoyed with the dwellinghouse.
Held The appeal was dismissed.
1. The purpose of the 1989 Act was to provide for the removal from the register maintained under the 1965 Act land on which there was a dwellinghouse or land which was ancillary to a dwellinghouse. It was intended to correct a deficiency in the 1965 Act which had led to injustice being suffered by a number of house owners. A registration under the Act could become absolute without the owner of the land being aware of the application for registration because there was no requirement that notice of the application should be given to the owner otherwise than through the press. That was what appeared to have happened in the present case: see Re 1-4 White Row Cottages, Bewerley (1992) 07 EG 119; and Cresstock Investments Ltd v Commons Commissioner [1992] EGCS 70.
2. In order to satisfy the requirements of section 1(2) and (3) the land must have been a garden used and enjoyed with a dwellinghouse at all times since 1945. The question was whether the commissioner’s decision was erroneous in point of law and that turned on the meaning to be attributed to the word “garden” in section 1(3). Expressions used in the 1989 Act had to be construed liberally having regard to its purpose.
3. The fields in question in the present case had been used at times for the grazing of cattle and the growing of hay and in a sense they were ancillary to the house in that they appeared to have been used and enjoyed with the house. But however extensive a meaning one gave to the word “garden” that word could not, as a matter of plain English, be applied to fields of pasture. The fields in the instant case were not derelict and no doubt a garden could have been created in them but that was another matter. No doubt also the amenities of a country house often included the ownership of fields abutting on its garden in which those who dwelt in the house might walk or play, However, that did not make those fields a part of the garden.
4. Accordingly the commissioner’s decision was not erroneous in law which was regrettable since it meant that the 1989 Act did not afford a remedy for the kind of mistaken registration that occurred in the present case.
Ann McAllister (instructed by Winward Fearon) appeared for the owners; the commons commissioner did not appear and was not represented.
