Register of common land — Objection to inclusion — Owner acquiring disputed land many years after original conveyance — Whether material factor — Whether land having to devolve with single dwelling house — Whether distance from dwelling house relevant — Objection upheld — Appeal allowed
Three parcels of land, adjacent to Settrington Park Estate, near Malton, North Yorkshire, were included in the Register of Commons. The appellant objected to their inclusion pursuant to the Common Land (Rectification of Registers) Act 1989 on the ground that the land was ancillary to a dwelling house.
Settrington House was a substantial mansion built in 1791 and surrounded by an extensive park acquired by the appellant’s father, Lord Buckton, in 1938. The three parcels of land which were included in the registration as Settrington village green were: an area of woodland known as “Dipper Wood”; a narrow strip of land known as the “Mill House strip”; and the largest, which was the site of an old orchard, known as the “Orchard site”. The commissioners held that the first two had been enjoyed as ancillary to a dwelling house, but that the orchard site, which had been conveyed to Lord Buckton in 1967, was more or less derelict. It was also a considerable distance from Settrington House and acquired many years after the 1938 conveyance. Further, he held that orchard site did not devolve with a single dwelling house, but had been severed from another house before Lord Buckton acquired it.
Held The appeal was allowed.
1. The distance from Settrington House to the orchard site was no greater than the distance from the house to the other two sites which the commissioners had none the less found to be part of the ancillary land.
2. There was nothing in the 1989 Act which required that land which was said to be ancillary to a dwelling house should be held under the same title as the dwelling house or that the dwelling house of the land, said to be ancillary to it, must be occupied by an owner occupier.
3. There was nothing in the Act which in terms required that land, claimed to be ancillary to a dwelling house, must be used and enjoyed as ancillary to a single dwelling house for the whole period and there was no reason why the Act should thus be restrictively construed in that sense. Therefore, evidence to the fact that the orchard strip had been enjoyed by more than one house before its present ownership was immaterial.
4. The Act did not contain an express right of appeal. However, it had been construed as supplemental to the Commons Registration Act 1965 and the right of appeal there was stated as equally applicable to an application under the 1989 Act: see Re 1-4 White Row Cottages, Bewerley [1992] 1 EGLR 185. That right was against a decision erroneous on a point of law. In the instant case, the only possible conclusion was that the case was one “which the true and only reasonable conclusion contradicts the determination of the Commissioner”: Edwards v Bairstow [1956] AC 14.
Charles Fay (instructed by Pearsons & Ward, of Malton) appeared for the appellant; the Commons Commissioner did not appear and was not represented.
