Common land, and the rights exercised over it by commoners, date back to the manorial system. Such rights are of considerable economic importance to commoners. They include rights to graze livestock, to put pigs in woodland to forage, to take fish, peat, turf, or wood, and to extract sand, gravel, stone and minerals from the ground.
In the latter half of the nineteenth century, legislation was enacted to protect and manage common land and, in due course, Parliament enacted the Commons Registration Act 1965 to establish definitive registers of common land in England and Wales. The legislation required applications to register rights to be made by 2 January 1970 and provided that rights that were not duly registered would not be exercisable. In Central Electricity Generating Board v Clwyd County Council [1976] 1 WLR 151, Goff J ruled that this meant that such rights were extinguished.
R (on the application of Littlejohns) v Devon County Council [2015] EWHC 730 (Admin); [2015] PLSCS 101 concerned an application to register rights to graze livestock on land in Devon, which is one of the pilot areas in which the Commons Act 2006 (which is being brought into force in stages) is in force. The “rights” in question had been exercised for decades and should have been registered before the deadline in 1970 but, for some unknown reason, were not. Had rights of common been acquired by prescription by the continued use of the land, without objection from the landowner, thereafter?
The grazing land had been registered as a common under the 1965 Act, even though the applicant’s rights had not been registered against it, and the 1965 Act does not provide for the registration of new rights of common over land that has already been registered (although it is possible to register new rights of common over previously unregistered land). Do transitional provisions in the Commons Act 2006, enacted to enable registers to be corrected and updated, change the position?
DEFRA guidance on the Commons Act 2006 is ambivalent. One guidance note states that “the 2006 Act… leaves the door open to the possibility that rights of common can be acquired by prescription under the 1965 Act even in relation to existing registered land, but does not explicitly provide that they can be”. Another (Commons Toolkit Guidance Note 4 Updating the Commons Registers) states that it is possible to make applications to register prescriptive rights of common created since 1970, but that “it is a grey area as to whether the registration of new rights on existing common land will be accepted”.
The judge observed that Parliament had intended to create a conclusive register of common land, and the rights of common that existed over such land, when it enacted the 1965 Act, and did not expect or intend new rights to be registered over existing common land after 1970. Importantly, the judge also noted that the 2006 Act expressly preserves the effect of the clause in the 1965 Act that extinguished rights of common that were not registered when they should have been. Consequently, the judge was not persuaded that the 2006 Act permits registration of new prescriptive rights of common over existing common land.
Is this the last word on this subject? Perhaps not; the judgment has the potential to affect farmers throughout England and Wales and it is understood that the applicant has been given permission to appeal against the decision.
Allyson Colby is a property law consultant
