ON APPEAL FROM THE HIGH COURT OF JUSTICE
BRISTOL DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE TOMLINSON
| Semaj John Dance
|- and -
Phillip Geoffrey French
John Summers (instructed by Harold Michelmore Solicitors) for the Respondent
Hearing date : Tuesday 23rd August 2011
Crown Copyright ©
LORD JUSTICE ETHERTON:
The legislative framework
The 1965 Act
"10 Effect of registration
The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only."
"15 Quantification of certain grazing rights
(1) Where a right of common consists of or includes a right, not limited by number, to graze animals or animals of any class, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals, or animals of that class, than a definite number.
(2) Any application for the registration of such a right shall state the number of animals to be entered in the register or, as the case may be, the numbers of animals of different classes to be so entered.
(3) When the registration of such a right has become final the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine."
"(a) land subject to rights of common (as defined in this Act) whether those rights are exercisable at all times or only during limited periods;
(b) waste land of a manor not subject to rights of common; …"
The 1966 Regulations
"(7) The rights section of each register unit shall be in Form 3, and shall contain the registrations of the rights of common registered as exercisable over the land comprised in the land section of the register unit, or any part thereof, particulars of the persons on whose applications the rights were registered and the capacities in which they applied, descriptions of the land (if any) to which the rights are attached, and such other information as may by any regulation made under the Act be required or authorized to be entered therein. "
The 2006 Act
"(4) The following information is to be registered in a register of common land or town or village greens in respect of a right of common registered in it—
(a) the nature of the right;
(b) if the right is attached to any land, the land to which it is attached;
(c) if the right is not so attached, the owner of the right."
(1) This section applies to land registered as common land, or as a town or village green, which is registered as being subject to a right of common.
(2) If the land would not otherwise have been subject to that right, it shall be deemed to have become subject to that right, as specified in the register, upon its registration.
(3) If the right is registered as attached to any land, the right shall, if it would not otherwise have attached to that land, be deemed to have become so attached upon registration of its attachment.
(4) If the right is not registered as attached to any land, the person registered as the owner of the right shall, if he would not otherwise have been its owner, be deemed to have become its owner upon his registration.
(5) Nothing in subsection (2) affects any constraint on the exercise of a right of common where the constraint does not appear in the register.
(6) It is immaterial whether the registration referred to in subsection (2), (3) or (4) occurred before or after the commencement of this section."
The 2008 Regulations
"(4) The rights section of each register unit must be in Form 3, and is to specify-
(a) the rights of common registered as exercisable over the land comprised in the land section of the register unit, or any part of that land;"
The factual background
To take: sand and gravel subject to the Water Authority Provision (see Page 1)
To graze: 56 bullocks or ponies 224 sheep over the whole of the land comprised in this register unit, CL.162 and CL.218 together with straying rights onto CL.146, CL.161 and CL.187."
To take: sand and gravel
To graze: 56 bullocks or ponies 224 sheep over the whole of the land comprised in this register unit, CL.164 and CL.218 together with straying rights onto CL.146, CL.161 and CL.137."
"In my CL 164 decision dated 30 June 1983 after a hearing in 1982, I concluded that a number of registrations in such proceedings disputed had been properly made, the rights having been recognised by the Duchy, as being attached to lands in Venville, and not disputed by anyone. Mr Sturmer [for the Duchy] said that the corresponding Unit Land [CL 161] registrations were similarly recognised as being in Venville. This is not enough to enable me to equate for all purposes under the 1965 Act, the Forest Part with the adjoining CL 164 land, because of the very many CL 164 Rights Section registrations which in my 1983 CL 164 decision I decided were properly made, only very few have corresponding registrations in the Unit Lands Rights Section. I have no power (it was not at this Unit Land hearing suggested I have) to direct that the Forest Part of the Unit Land be removed from the Land Section of this CL 161 Register and by way of transfer included in the CL 164 Land Section, or to direct that any of the CL 164 Rights Section registrations shall be inserted in the Unit Land Rights Section for the first time. So by the Commons Registration Act 1965 the historic connection between the Forest Part of the Unit Land and the rest of the Forest of Dartmoor comprised in CL 164 has forever in part been broken. The Act nowhere makes this result altogether unavoidable; but even with the hindsight I have as a result of this Unit Land hearing, I am unable to think of any way by which it could have been prevented by the Duchy or anyone else except at trouble and expense disproportionate to the value of any benefit which could have resulted."
"Next I consider the registrations of "rights to stray" specified in Part I of the First Schedule hereto so far as possibly applicable to the Forest Part. Mr Sturmer [for the Duchy] insisted they were not properly made at least as regards those to which the Duchy had made an Objection, that is as regards all except Nos 65, 68, 92 and 108; accordingly in the absence of any evidence or argument in support of them, my decision is that all these registrations except as aforesaid were as regards the Forest Part not properly made. As regards the excepted registrations I have no note or recollection of Mr Sturmer saying anything about them; however, because the CL 164 registrations at Entry Nos 575, 580, 592 and 821 corresponding to them were by my CL 164 decision confirmed with the modifications therein set out, my decision is that these four Unit Land registrations modified by substituting "graze" for "stray" were properly made as regards the Forest Part."
"To graze 56 bullocks or ponies and 224 sheep on the part of the land comprised in this register unit hatched red (horizontally and diagonally) and lettered A on the register map"
"Indeed it would be surprising if the omission of unnecessary information as to a right claimed over another unit could have led to a final registration which conferred an unqualified right to graze when no such right had previously been enjoyed."
"In my judgment the best evidence of the true position is that Mr Dance clearly understood that his right to graze the defined livestock was split over all three register units and so made his application for registration of his rights of common in the way that he did."
The first ground of appeal: conclusiveness of the register
"To my mind the ultimate question is: what is the effect in law of land registered in the land section as "common land" but with no "rights of common" registered in the rights section and that entry becoming conclusive under s 10? This must be judged by the effect the entry would have on a reader examining the register, who wanted to know what the position was. He is not to be credited with any knowledge of the previous history of the land. He ought to have by his side the definition of "common land" in s 22(1) of the 1965 Act: "(a) land subject to rights of common … (b) waste land of a manor not subject to rights of common; …"
Seeing that no rights of common are entered on the register, the person examining the register would at once assume that the land must be "waste land of a manor". That is the only way of reconciling the entry in the land section with the non-entry in the rights section. As the land is conclusively to be regarded as "common land", it follows that it must conclusively be deemed to be waste land of the manor.
Now in this case it is said that, on the agreed statement of facts, this land was never waste land of the manor. But our reader of the register is not to know this. He is entitled to go by the register itself."
"The conclusion is, in my opinion, inescapable that subsection (3) transformed the right, on registration, from being a right limited by levancy and couchancy to being a right for a fixed number of animals. That had been the intention of the Royal Commission whose recommendation to that effect was implemented by section 15. I am unable to accept Mr Chapman's argument that section 15(3) simply imposed a cap on the number of animals levant and couchant that could be grazed. If that were right, the levancy and couchancy limitation would, subject to the cap, have remained. Whatever else section 15 may or may not have done, it plainly, in my opinion, got rid of levancy and couchancy as a measure of the number of animals that, post registration, could be grazed."
"How do I know if I have common land rights or how many rights I have?
Your grazing rights will usually be listed in the common land register drawn up under the Commons Registration Act 1965. These registers are held by the local authority that is responsible for the common.
We recommend you check the common land register to ensure you know:
the number of the entry or entries to which your rights are attached;
the number and type of rights that are available to you; and
whether your rights are split."
A note to that text in the handbook says:
"Split rights – where a common land register allows a grazier the right to graze their animals across more than one common, usually qualified in the register as 'over the whole of this register unit and CL XXX'"
"107. Subsection (5) preserves what is believed to be the present position under the 1965 Act, which is that, where a right of common is subject to any customary constraint not mentioned in the register (for example, that the rights may be exercised only at certain times of the year, that stock should be hefted in accordance with local custom, or that the times at which stock may be turned out are to be determined by a manorial or other ancient court), those constraints are preserved notwithstanding that they are not mentioned in the commons registers."
"Section 15 uses the words "treated as exercisable in relation to no more animals…. than a definite number"; this does not I think mean that when a number is inserted on the register pursuant to the section, the owner of the right thereafter has under section 10 the right in all circumstances to graze that number of animals. In my view section 15 does no more than provide an upper limit. If anybody wishes to claim that the number of animals grazed by anyone at any time is, notwithstanding that it is less than the upper limit, excessive, his right to take legal proceedings is unaffected by the 1965 Act, except to the extent that section 10 is applicable. It may be therefore that in this case and in many other cases the number put on the register pursuant to section 15 may be of little practical consequence.
I construe section 15 showing an intention by Parliament to abolish levancy and couchancy; but I do not think it was the intention that any Court who should be concerned with a registered right of common should be bound under section 10 of the Act to assume that the right owner could graze at all times and in all circumstances the number of animals mentioned on the register without regard to the circumstances in which the right came into existence; the object of the Act is I think, to provide a register of rights, not to provide a register of regulations which would determine every conceivable dispute which might arise as to the exercise of rights.
It may be that as a result of decisions by Commons Commissioners, there will be registrations say, of a right to graze x cattle over one Register Unit and to graze y cattle over an adjoining Unit (rights attached to the same land); in my view it will not follow that such person can lear x + y cattle across the boundary relying on some supposed right of vicinage; there is no reason why rights over two commons should not be so connected as to require the animals on one for numerical purposes to be treated as being grazed on both. In other cases elsewhere in England I have been told that this is the local understanding and have at the request of those concerned modified registrations so that the understanding is therein expressed; but by occasionally doing this I am not saying that such an understanding (a sort of bringing of animal numbers into hotch-pot) may not in a proper case be implied without being in the Register expressed."
"The Regulations are drafted on the basis that each register unit is to be self-contained. … I have therefore come to the conclusion that the reference to Register Unit No. CL 139 in Register Unit No. CL 9 was not authorised by reg. 10(2) and has no legal effect. This reference must be regarded as surplusage. Surplusage is defined in Jacob's New Law Dictionary (10th ed. 1782) as "a superfluity or addition more than needful". Such words in a document are to be rejected as surplus, repugnant and void, for the document is complete without them: see 2 Hawkin's Pleas of the Crown 623, s.10. I can appreciate that it may serve a useful purpose in indicating that a right exercisable over the land comprised in Register Unit No. CL X is also registered in respect of the land comprised in Register Unit No. CL Y and Register Unit No. CL Z, but any right there may be in respect of the land comprised in Register Units Nos. CL Y and CL Z must be sought in those Register Units and is not conferred, reinforced or in any way affected by the entry in Register Unit CL X ."
The second ground of appeal: identification of the register unit(s) between which the entry No.108 right is split.
LORD JUSTICE TOMLINSON
LORD JUSTICE HUGHES