Rights of common
Registration of new rights over existing common land
Littlejohns v Devon County Council & Duchy of Cornwall
 EWCA Civ 446
The Court of Appeal held that no new rights of common could be registered under the Commons Act 2006 where the claimants had used the registered common land for grazing for over 20 years but their predecessor in title had failed to register the rights under the Commons Registration Act 1965.
The claimants (C) own two farms adjoining common land including a Common in Devon which was registered as common land under the scheme introduced by the 1965 Act. In 1968 the first claimant’s father (F), then the owner of the farms, gave notice of his intention to apply to register rights of common under the scheme but no formal application was made and no rights were ever registered. This was not appreciated by C at first but they continued to use the common land for grazing until 2001 when it became subject to agri-environment schemes which permitted the claimants to elect to reduce or forego grazing in return for payments.
The 2006 Act came into force in Devon, in 2008 and in 2010 C applied to amend the register to record the rights of common under the transitional provisions in paragraph 2(2)(a) of Schedule 3 to the 2006 Act. The grounds were that the claimants had, after 1 January 1970 and before 1 October 2008, the period specified in the statute, grazed sheep and cattle on the common land for over 20 years and so had acquired a prescriptive right to do so.
The Council refused the application on advice from leading counsel that a right of common could not be created by prescription after 2 January 1970 over land that had been registered as common land under the 1965 Act. The claimants applied for judicial review of that decision.
It was common ground that the failure to register the rights enjoyed by F by the deadline of 31 July 1970 imposed by the scheme of the1965 Act had the effect of extinguishing those rights as at that date. The issue between the parties was whether or not rights of common were acquired by prescription by the continued use of the common land for grazing from 1970 onwards.
The High Court dismissed the claim. The Court noted that although rights could be lost as a result of non-registration, the 1965 Act did not prevent any new rights of common coming into existence because section 13 provided for amendment of the registers where “any land becomes common land”. But it was clear that regulation 3(2) of the regulations made under that section, The Commons Registration (New Land) Regulations 1969 (SI 1969/1843), excluded any applications to register rights of common over land that was already registered under the 1965 Act prior to 2 January 1970.
Further, section 1(2)(a) of the Commons Registration Act 1965, provided, in effect, that at the end of a period, subsequently determined to be a date in 1970, “no land capable of being registered under this Act shall be deemed to be common land … unless it is so registered” and (b) “no rights of common shall be exercisable over any such land unless they are registered”. However, the claimants argued that this provision only applied to rights in existence as at 1970.
The Court rejected that in the light of the broadly expressed terms of the subsection; of the parallel existence of unregistered rights being contrary to the purpose of the 1965 Act; and of section 13 which permitted new rights of common to be registered but only over new common land.
In the Court’s view the exclusion of new rights of common over existing common land was consistent with the aim of producing a conclusive register of common land, and the rights of common which existed over it, as at 31 July 1970. If this primary view was wrong and new rights of common could arise by grant or prescription over existing common land then the Court considered that they would be extinguished as soon as they arose since they could not be registered. So if the claimants had acquired prescriptive rights in the 1990s after 20 years they would have been extinguished by virtue of non-registration. Article 1 of the First Protocol to the ECHR and the Human Rights Act 1998 was not engaged since no proprietary rights ever came into existence or if any did they were extinguished long before the 1998 Act came into force.
The Court turned to address the claimants’ contention that the transitional provisions in the 2006 Act were intended to address deficiencies in the scheme of the1965 Act and give a final opportunity to register rights of common acquired by prescription. The provisions of paragraph 2 of Schedule 3 to the 2006 Act permitted the amendment of registers of common land “in consequence of qualifying events which were not registered under the 1965 Act” a qualifying event being “the creation of a right of common (by any means, including prescription), where occurring in relation to land … at any time after 2 January 1970 and before [1 October 2008].”
The Court concluded that Schedule 3 was designed to provide a brief window within which the register could be updated and corrected by incorporating any registrations which could have been made but were not made under the 1965 Act. The 2006 Act did not revive rights of common that were not capable of being registered under the 1965 Act. The claimants could not prove the creation of a right of common between 1970 and 2008 to prove a qualifying event because they could not establish that they had acquired rights of common over that period. The fact that paragraph 6 of Schedule 3 to the 2006 Act expressly confirms the extinguishment of rights under section 1(2)(b) of the 1965 Act signals that it was not intended to revive such rights.
The 2006 Act was to be interpreted so as to the give effect to Article 1 of the First Protocol but the Judge was satisfied that the transitional provisions in Schedule 3 did give sufficient protection to existing rights of common so as to avoid a breach of Article 1. The reason why the claimants’ application failed was because they could not establish that they had acquired rights of common when they applied to register them in 2010.
The council’s decision was correct in law and so the claim was dismissed.
Decision on appeal
The Court of Appeal, by a majority (the Chancellor Sir Terence Etherton dissenting), dismissed the claimants’ appeal. Lewison LJ, with whom Tomlinson LJ agreed, upheld the decision to reject the claimants’ application essentially for the same reasons that the Judge did.
Lewison LJ concluded that the words “any such land” in section 1(2)(b) of the 1965 Act referred to land “so registered” as common land in section 1(2)(a) so that “no rights of common shall be exercisable over” that land “unless they are registered” as section 1(2)(b) provided. Lewison LJ said:
“In my judgment the straightforward reading of section 1 (2) (b) leads to the conclusion that after 31 July 1970 no unregistered rights of common can be exercised over land which is registered as a common. If they cannot be exercised, then a person who claims to have acquired a prescriptive right of grazing over registered common land is attempting to establish a right in reliance on activity that is precluded by section 1 (2) (b). The general principle that an easement or profit a prendre cannot be acquired by doing something that is prohibited by a public general statute is well established.”The Chancellor would have allowed the claimants’ appeal. In a detailed dissenting judgment he noted in particular that section 1(2) of the 1965 Act contained no express prohibition on the creation of new rights of common over existing common land and that clear words should be required before concluding that Parliament intended to abolish the right of an owner of land to dispose of interest in the land as he or she thinks fit.
Moreover a blanket prohibition on the creation of new rights over existing common land ran counter to the recommendations of the Royal Commission, which led to the passing of the 1965 Act, that concerns about the management of common land should be addressed, because it would not enable the best use to be made of common land for all those interested in it and who could benefit from it.
The claim in this case was supported by the National Farmers Union since, as the Lord Chancellor said, the “point of law is potentially of importance to many more people, particularly farmers, than the parties to the present case. It is a point of law on which commentators, among whom is [DEFRA], have been in disagreement.”
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