Commons registration–Issues raised by appellant boil down to a challenge to commissioner’s finding that land was ‘waste land of the manor’–Point subject to procedural bar–Judge’s advice to appellant on ways of taking a point of the kind–Registration confirmed on merits
This was an
appeal by John Sheringham Whittle, freehold owner from 1963 to 1974 of Britford
Green, Britford, Wiltshire, from a decision of the chief commons commissioner
(G D Squibb QC) dated March 20 1975 (Ref no 241/D/29) confirming the
registration of the green as common land. The respondents were Britford Parish
Council.
J Fulthorpe
(instructed by Letcher & Son, of Ringwood)
Salisbury) represented the respondents.
Giving
judgment, SLADE J said that the land in question formed part of the manor of
Britford. It and the lordship of the manor had been in united ownership
throughout the whole period of living memory. The Britford Estate was formerly
owned by members of the Jervoise family of Herriard Park, Hampshire, the last
of the family to own it being the late Major F H T Jervoise until his death in
1959. In 1963 the estate was sold as a whole to the Ashdale Land & Property
Co Ltd, which conveyed the lordship of the manor and the subject land to the
appellant on January 31 1963. The land was conveyed by the appellant to his
son, together with the lordship of the manor, on August 9 1974. The chief
commons commissioner on March 20 1975 gave a decision confirming the
registration of the land as common land in the register maintained by the
former Wiltshire County Council. Having been required to do so by the
appellant, the chief commissioner stated a case under section 18 of the Commons
Registration Act 1965. This raised the question whether, on his findings of
fact, he came to a correct decision in law.
There were two
elements in the definition of ‘common land’ in the 1965 Act: that the land was
subject to rights of common as defined in the Act, or that it was waste land of
the manor not subject to rights of common. The chief commissioner rejected the
parish council’s contention that the land fell within the first limb of the
definition but held that it fell within the second. The appellant now advanced
four grounds of appeal: that no evidence was adduced or submission made
indicating that the land was waste land of the manor, but that there was
evidence that it was freehold land, albeit unenclosed; that the chief
commissioner wrongly construed ‘commons’ so as to exclude the definition in
section 37 of the Commons Act 1876; that he wrongly rejected the submission
that at some stage the land must have been subject to rights of common or some
form of manorial rights; and that he wrongly dismissed evidence of the taking
of natural produce from the land by a person not a commoner (ie the appellant),
evidence pointing to the conclusion that the land was the freehold and
unencumbered land of the appellant, or at any rate indicating some change in
the legal interest in the land. All this seemed to embody a submission that
there was insufficient evidence to justify the finding that the land was waste
land of the manor; but in his (Slade J’s) judgment, it was not open to the
appellant to make this submission. His right of appeal was so confined by
section 18 (1) of the 1965 Act that it was incumbent on the court to answer the
question of law in the case stated solely on the basis of the facts set out in
the case and the decision, without reference to any other facts.
This
necessarily prevented him (his Lordship) from paying any regard to the facts of
what did or did not occur at the hearing before the commissioner. Likewise, in
view of the form of the case stated, it would not be open to him to conclude
that there was insufficient evidence to justify any finding of fact made by the
commissioner. If an appellant under this form of procedure wished to take a
point of the kind in issue, the submission that some finding of fact was based
on insufficient evidence, he ought, in his (Slade J’s) judgment, to raise it when
requiring the commissioner to state a case. He should require the commissioner
expressly to include in the case stated a question whether there was sufficient
evidence to justify the finding to be questioned, here of course the finding
that the land was at the relevant date waste land of the manor. Alternatively
an appellant could apply under order 56, rule 11 of the Rules of the Supreme
Court for an order for the case to be returned to the commissioner for
amendment: see the judgment of Foster J in New Windsor Corporation v Mellor
[1974] 1 WLR 1504 at 1507-8.
In the present
case the appellant had made no application under the rule, and the only
substantial question for the court was whether, on the findings of fact set out
in the case stated incorporating the commissioner’s decision, the commissioner
was or was not justified in reaching his conclusion that the land was waste
land of the manor within section 22 (1) of the 1965 Act. Mr Fulthorpe argued
that even on that basis the decision was erroneous in point of law. In his
(Slade J’s) judgment it was plain that the definition of ‘waste land of the
manor’ in the Commons Act 1876 was a definition contained in a special context
and for a special purpose, and could not be appropriately regarded as a general
definition of waste land of the manor suitable for use outside the context of
that Act. He therefore saw no reason for giving an artificial meaning to the
phrase ‘waste land of the manor.’ The
commissioner had held that the conditions laid down in A-G v Hanmer
(1858) 27 LJ Ch 837 at 840 were satisfied. There Watson B said:
The true
meaning of ‘wastes,’ or ‘waste lands,’ or ‘waste grounds of the manor,’ is the
open, uncultivated, and unoccupied lands parcel of the manor . . . other than
the demesne lands of the manor.
The land was a
parcel of the manor, had been in the same ownership, was open and uncultivated,
and was unoccupied. He (the commissioner) held that the cutting by the
appellant of grass for hay or silage did not of itself deprive the land of the
status of manorial waste. He (his Lordship) shared the commissioner’s opinion;
the cutting of grass by the lord of the manor was not in the least inconsistent
with the continued status of the land as waste land of the manor. On the
findings of fact set out in the chief commissioner’s decision, the chief
commissioner came to a correct decision in law in holding that the land fell
within section 22 (1) (b) of the 1965 Act, even though it would appear from the
case stated that respondents’ primary submission was that it fell within
section 22 (1) (a), and even though that particular submission failed.
The appeal
was dismissed with costs. Leave to appeal was refused.
