Objection to inclusion of land in register — Public use of private land — Rectification of register sought — Whether land used as grazing ancillary to and part of dwelling-house — Whether land came within 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 1988 J and his wife were owners of 14 acres of land in Durham. The land was in two parts. There were 4 1/2 acres which were fenced and on which there was a large dwelling-house with outbuildings known as Mooredge Farm. The house was demolished in 1993 and a new dwelling-house was in the process of being built. There were also 9 1/2 acres adjacent to the fenced land which were unfenced and had a public footpath across (“the objection land”). The objection land had been registered as common land in 1980 before J and his wife purchased Mooredge Farm. J 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 considered written representations and oral evidence and concluded that J had failed to show that the objection land had been used and enjoyed as a garden with Mooredge Farm and refused the application to rectify the register. J appealed to the High Court; the respondents to the action being Durham County Council. Section 1(1) of the 1989 Act 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 dwelling-house which was not on the land: section 1(2)(a)(ii). For the purpose of that requirement, land ancillary to a dwelling-house meant a garden, private garage or buildings used and enjoyed with the dwelling-house.
Held The appeal was dismissed.
1. The purpose of the 1989 Act was to provide for the removal from the register, maintained under the commons Registration Act 1965, land on which there was a dwelling-house or land which was ancillary to a dwelling-house.
2. To obtain relief under the 1989 Act the land had to be the site of a building consisting of one or more dwelling-houses or ancillary to a dwelling-house. Ancillary land was limited to a garden, private garage or outbuildings used and enjoyed with a dwelling-house and the ancillary land had to have existed as such since August 5 1945 — 20 years before the passing of the 1965 Act: see Cresstock Investments Ltd v Commons Commissioner [1992] EGCS 70.
3. In the present case there was evidence that the objection land had been used for the grazing of cattle and that there had been unrestricted use by the public for a wide range of activities for many years. Although the occasional use of land by the public did not necessarily make it any the less a garden, the constant free use of land since before its registration as common land by the public indicated that it was not a garden within the 1989 Act.
4. Accordingly, the commissioner’s decision was not erroneous in law. J had failed to discharge the burden of proving that the objection land was conveyed with the dwelling-house as a garden.
Samuel Parrish (instructed by Barbara Thubron, of Durham) appeared for the owners; Philip Petchey (instructed by the solicitor to Durham County Council) appeared for the council; the commons commissioner did not appear and was not represented.
