England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
His Honour Judge Pearce-Higgins QC
7WR00149/7WR00150/9WR02352

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/05/2012

Lord Justice Kitchin:

Introduction

1. This appeal concerns a parcel of common land called Luckwards Hill in the parish of Powick in Worcestershire. It is one of a number of parcels of common land which are the subject of register unit CL 77 in the register maintained by Worcestershire County Council and which together comprise Powick Common.
2. Luckwards Hill extends over 13.6 acres and lies to the south of a track which runs in a westerly direction from Upton Road. The track passes to the south of Stanbrook Abbey and then Moat House Farm ("the Farm"). At this point the track begins to run along the northern boundary of Luckwards Hill. Not far after the Farm, the track branches. One branch leads in a north westerly direction towards Jennet Tree Lane. The other branch leads in a south westerly direction and again runs along the northern boundary of Luckwards Hill. In the corner of these two branches lies Henwick Cottage. A gate provides access to Luckwards Hill from the track at a point close by the cottage.
3. The appellant, Mr Hall, is the tenant of the Farm and its 56.5 acres pursuant to a tenancy agreement dated 22 July 1998 granted to him by the trustees of Stanbrook Abbey ("the trustees"). The land farmed by Mr Hall lies either side of the track and includes three fields which adjoin Luckwards Hill. Field 1574 lies to the east of Luckwards Hill and immediately to the south of the track. It is separated from the common by a fence and hedge but access to the common may be gained from the field through a gate, referred to in these proceedings as gate B. Field 1354 lies to the south east of Luckwards Hill. It too is separated from the common by a fence and hedge but access to the common may, once again, be gained through a gate, referred to in these proceedings as gate C. Field 8555 lies to the west of Luckwards Hill and is separated from it by a fence.
4. Luckwards Hill is itself divided into two portions by a fence which runs in a south easterly direction from the gate beside the track. The first and second respondents, Mr and Mrs Harris, own the eastern portion of Luckwards Hill which consists of a field of about 10.3 acres. This land was transferred to them by a Mr Richard Jolly on 20 May 2005 and their title is registered under numbers WR 95648 and WR 95790. On the same day Mr and Mrs Harris also acquired adjoining land from the trustees, namely field 1574 to which I have referred and, immediately to its south, a building and land then known as Stanbrook Croft. It is now called Stanbrook Grange and is Mr and Mrs Harris' home. Since field 1574 forms part of the Farm, by letter dated 27 May 2005, the trustees directed Mr Hall to pay the rent in respect of it to Mr and Mrs Harris, and that he has done since that time.
5. The western portion of Luckwards Hill consists of a smaller field of about 3.3 acres which was acquired by the third respondent, Mrs Moore, from Mr Jolly on 28 June 2005. Her title is registered under numbers WR 96452 and WR 96453.
6. Mr Hall's late father Reginald was, until his death in 1997, a tenant of the Farm under a tenancy agreement granted to him by the trustees on 25 April 1961. From the early 1990s until his death in 1997 Mr Reginald Hall was granted a seasonal grazing licence over at least part of Luckwards Hill each year by the freehold owners, Mr Philip Laney and Mr Jolly. After his father's death, Mr Hall also enjoyed the benefit of such annual grazing licences until 2004. Those licences were initially granted by Mr Laney and Mr Jolly and then, after Mr Jolly had purchased Mr Laney's interest in Luckwards Hill, by Mr Jolly. In 2005 and 2006 Mr Hall sought from Mr and Mrs Harris, but was refused, a 20 year lease over their portion of Luckwards Hill. It seems Mr Hall was offered, but did not take up, similar grazing licences to those he had previously enjoyed. Instead, the relationship between the parties began to deteriorate and a series of disputes arose between them concerning a claim by Mr Hall to rights of common over Luckwards Hill. Those disputes led to and are the subject of these proceedings, as I shall explain. But first I must outline the basis of the rights of common to which Mr Hall claims to be entitled.
7. On 2 January 1970 the trustees made an application pursuant to section 4 of the Commons Registration Act 1965 to register the right to graze a defined number of livestock over the whole of register unit CL 77. The right was said to be attached to various lands of Stanbrook Abbey, including a number of fields forming part of the Farm, one of which was field 1574. On 22 January 1970 a provisional entry was made on the register and in due course that entry became final. Mr Hall's claimed rights are founded upon this entry. He maintains that his tenancy agreement impliedly granted to him the trustees' rights of common attaching to the Farm, and that these rights include the right to access Luckwards Hill.
8. I should also mention that for very many years prior to the commencement of these proceedings, many of the commoners of Powick participated in or at least accepted the actions of the Commons Committee of Powick ("the Committee"). Further, in 1984 Mr Jolly and a Mr Laney entered into an agreement with the Committee, purportedly acting on behalf of all those entitled to exercise rights of common over Luckwards Hill. That agreement provided that the commoners waived their rights of common over Luckwards Hill in consideration of the annual sum of £225.00 (reviewable triennially), to be paid to the Committee by the freeholders. The reason for this agreement was that there were over 50 separate commoners entitled to graze the common land in Powick and it was considered impractical for the land at Luckwards Hill to be grazed by all of them. The Committee's income was derived from such waiver agreements and was used to improve the grazing on all the common land in the parish. Mr Hall's position was and remains that, although his father was aware of the meetings convened by the Committee, he chose not to attend them and there was no question of his ever having agreed to any waiver by the Committee of his rights of common. He has always maintained that the Committee had rights of management over the common land but that was the limit of its powers.

The claims

9. On 19 January 2007 Mr Hall issued two claims in the Worcester County Court. In claim 7WR00149 against Mr and Mrs Harris, Mr Hall complained about a number of matters relating to his right to access their portion of Luckwards Hill and exercise his rights of common over it. In claim 7WR00150 against Mrs Moore, Mr Hall made similar complaints relating to her portion of Luckwards Hill.
10. On 22 November 2007 these two claims came before His Honour Judge Geddes who tried, as a preliminary issue, the question whether Mr Hall was entitled to any rights of common over Luckwards Hill. He found against Mr Hall, deciding he had no rights of common by virtue of his tenancy of the Farm and, moreover, there was a further reason why Mr Hall's claim must fail, this being that, since 1984, all such rights had been waived. Therefore no exercisable rights could have passed to Mr Hall under his 1998 tenancy agreement. Mr Hall appealed to this court which, by judgment and order of 18 March 2009, allowed the appeal. Rimer LJ, with whom Toulson and Rix LJJ agreed, concluded that the rights of common over Luckwards Hill attaching to the Farm did pass to Mr Hall with his tenancy and that, in principle, he was entitled to exercise them. Moreover, it could not be said that any rights which Mr Hall enjoyed had been waived by the actions of the Committee, there being no evidence that Mr Reginald Hall or the trustees had conferred any authority on the Committee entitling them to do any such thing. This court therefore declared that Mr Hall was entitled in his capacity as a tenant of the Farm to exercise over CL 77, including Luckwards Hill, the rights of common of pasture registered as attaching to the Farm, with the precise nature and extent of such rights to be determined by the County Court upon the remission of the claims to it.
11. Then, on 17 November 2009, Mr and Mrs Harris issued claim 9WR02352 against Mr Hall claiming that in the course of June or July of that year he unlawfully entered their portion of Luckwards Hill and cut and removed a crop of hay worth £1,200.
12. All three claims came on for trial before His Honour Judge Pearce-Higgins QC on 4 and 5 November 2010. By his judgment handed down on 4 April 2011, he made the following general findings: Mr Hall's right over Luckwards Hill as a commoner was exercisable every third year; that the right was only a right of pasture, that is to say, for a certain number of animals to graze; Mr Hall had no right to cut or remove fodder or to provide additional fodder to the animals grazing; Mr Hall had no right to cut or remove weeds or to improve the land; during commonable years the respondents could not obstruct access to the common land in any way; and it was not possible for Mr Hall to bring a vehicle on to Luckwards Hill unless it was necessary for the enjoyment of his right; and, having regard to the size of Luckwards Hill, it would only be necessary to access it with a vehicle for the purpose of removing a dead or sick animal.
13. Turning to the particular matters in dispute between the parties, the judge arrived at the following conclusions in respect of Mr Hall's complaints. First, Mr Hall was entitled to use Luckwards Hill for the grazing of his animals in October 2006, that being a commonable year. But he was not entitled to enter onto the common with any vehicle.
14. Second, to the extent that Mr and Mrs Harris sought to prevent Mr Hall from accessing Luckwards Hill by locking a gate or erecting a fence, they were not entitled to do so, and Mr Hall was entitled to remove such obstructions. The respondents were under a general obligation not to do anything that obstructed access to the common in commonable years. The existence of the fence between their two fields did not amount to such an obstruction, provided there was available a gate allowing free movement of livestock between those fields.
15. Third, Mrs Moore was entitled to fence her field, provided she did not erect a fence on the common and did not obstruct access to or use of the common.
16. As for the complaint made by Mr and Mrs Harris against Mr Hall, Mr Hall had no right to cut and remove what was growing on Luckwards Hill in the summer of 2009, whether weeds or otherwise. The judge concluded that at least some of what Mr Hall had removed was of value but since he had heard no evidence on the point, he was not in a position to award more than nominal damages.
17. Following his judgment, the judge made the following order:

"1. Commoners with a registered right of Common over Worcestershire common CL77 have the right to exercise the registered rights of common over field numbers 9758 and 0567 (formerly SO502) (known as Luckwards Hill) one year in three, with 2009 being a commonable year.

2. By virtue of his tenancy of the land currently comprising Moat House Farm, Powick, the Claimant has a right of common over Worcestershire common CL77 to graze 53 cattle or 106 yearling cattle or 26 horses or 212 sheep.

3. There be a Declaration that the Claimant may not exercise the said rights of common:

(i) by bringing vehicles onto the said Luckwards Hill save for the purpose of removing a dead or sick animal;

(ii) by cutting and or removing anything growing on the said Luckwards Hill except "by the mouths of his animals", and that right is limited to commonable years;

(iii) by attempting any form of cultivation on Luckwards Hill.

4. There be a Declaration that the Defendants are entitled to fence around their respective holdings, subject to ensuring that access to the common at Luckwards Hill from Jennet Tree Lane is not impeded, and there be a gate on the boundary between the land owned [by] Mr & Mrs Harris and Mrs Moore.

5. There be Judgment for Mr & Mrs Harris and the Claimant do pay to the Defendants, Mr & Mrs Harris £5 damages in respect of the crop removed in 2009 …."

The judge also ordered Mr Hall to pay to the respondents their costs to be assessed on the standard basis.

The appeal

18. On this appeal Mr Hall challenges various aspects of the judge's findings and order. First, Mr Hall maintains the judge erred in finding that his right of common is exercisable only one year in three. Mr Hall contends that the judge ought to have found the right is exercisable every year.
19. Second, Mr Hall challenges the order made by the judge as to his ancillary rights. In this regard, Mr Hall maintains that the judge's declaration that he cannot bring vehicles onto the common save for the purpose of removing a dead or a sick animal is unduly restrictive, as is the judge's declaration that he cannot cut or remove anything growing on the land.
20. Third, Mr Hall contends that the judge erred in failing to find that he is entitled to access the common from field 1574 through gate B and from field 1354 through gate C. Moreover, he maintains that a single gate in the fence between the field owned by Mr and Mrs Harris and that owned by Mrs Moore is not sufficient to allow his animals proper access over the whole common.
21. Finally, he contends that the judge erred in awarding Mr and Mrs Harris nominal damages; he says they were not entitled to any damages at all.
22. For their part, Mr and Mrs Harris cross-appeal, contending the judge ought to have awarded the £1,200 by way of damages which they had claimed.
23. Mr Hall has been represented on the appeal by Mr Zachary Bredemear. The respondents have been represented by Mr John Randall QC and Mr Giles Harrison-Hall. We are indebted to all counsel for their clear and helpful submissions and their constructive approach to what the judge rightly described as a most unfortunate dispute. We would extend our particular thanks to Mr Bredemear who has appeared pro bono.

The scope of the right

24. Both before the judge and his original skeleton argument in support of this appeal, Mr Hall took two points. First, he contended that because the right recorded in the register makes no mention of any temporal limitation upon its exercise, it necessarily follows that he now enjoys it free from any such limitation. Second, he contended that if, contrary to his first argument, the register is not determinative then the existence of any limitation not specifically mentioned on the register must be established by the party asserting it; the respondents had failed to establish any such limitation on the evidence and the judge fell into error in failing to so find.
25. At the hearing of this appeal, Mr Bredemear conceded that the entry in the register is not determinative in the light of the decision of this court in Dance v Savery [2011] EWCA Civ 1250. Etherton LJ (with whom Hughes and Tomlinson LJJ agreed) rejected the suggestion that section 10 of the 1965 Act rendered the register conclusive against the existence of constraints which were not expressly mentioned and said that the Commons Act 2006 was not enacted to make the register more conclusive than before. He put it this way at [66] – [68]:

66. It is, moreover, common ground that not every limitation or restriction on the exercise of a right of common was required by the 1965 Act and the 1966 Regulations to be stated on the register. Mr Wonnacott accepted, for example, that customary limitations as to the time at which a right might be exercised, such as where it might be exercised only in certain years or certain times of the year, would continue to apply even though not stated in the register. Significantly, that concession is made, and correctly made, even though part 5 of the application form specified in the 1966 Regulations expressly required particulars to be given if the rights were exercisable only during limited periods …

67. If, as I consider, that was the position under the 1965 Act and the 1966 Regulations in relation to entry No 108 in the rights section of CL 161, it was not changed by the 2006 Act or the 2008 Regulations. The 2006 Act was not enacted to make the register even more conclusive than before, but rather the reverse, in recognition that its conclusiveness under the 1965 legislative scheme had resulted in unfairness and unintended alterations of former legal rights …

68. Indeed, section 18(5) of the 2006 Act provides for the first time express statutory recognition of what was implicit in the 1965 statutory scheme, namely that the register is not conclusive as regards the absence of constraints on the exercise of a right of common if no such constraints are registered …"

26. Mr Bredemear accepted that the concession made by the commoner in Dance v Savery was correctly made. But, he submitted, this did not affect Mr Hall's second point, upon which he continued to rely.
27. I would accept that in the absence of any temporal limitation on the register upon the exercise of a grazing right, the burden of establishing the existence of any such a limitation must lie upon the party asserting it. However, I believe the judge had ample material before him upon which to base his finding that Mr Hall's right of common was only exercisable every third year.
28. First, the judge heard evidence from Mr Robert Floyd of Stockend Farm in Bransford, Worcester. He said that he had been the chairman of the Committee since about 1997 and a member of the Committee for about 30 years, that is to say since about 1977. He also said that Luckwards Hill has always been an enclosed arable common with the freeholder or the tenant of the freeholder entitled to cultivate and grow crops for two years in three. In the third year, the common lay fallow and was available to the commoners for grazing.
29. I recognise that Mr Floyd's personal knowledge does not extend back to a date earlier than that of the application by the trustees to register the right. Moreover, neither Mr Hall nor his father ever engaged with the Committee or gave it authority to act on their behalf. Nevertheless, there is no reason to believe the rights enjoyed by the other commoners are different from those enjoyed by Mr Hall and his father. Nor is there any reason to believe the position was any different in 1970 and, indeed, before that. To the contrary, Mr Floyd's evidence was consistent with a document containing the rules and customs of Powick commons approved by Court Baron on 8 December 1966. This refers, on its second page, to:

"LUCKER'S HILL and LONGFIELD having a right to be Common every third year, being then fallow."

Mr Bredemear acknowledged that this document had a date earlier than that of the registration but submitted the judge should not have relied upon it because its authenticity was not established and Mr Floyd explained in the course of his evidence that decisions of Court Baron were relatively informal. Moreover, it would appear from an updated version of the rules and customs that, in some respects, the bye-laws and description of customary practices have been altered. Mr Bredemear also suggested that the "LUCKER'S HILL" referred to might not correspond to the Luckwards Hill in issue in these proceedings.

30. I am not persuaded by any of these submissions. The document was included in the trial bundles and there was no challenge to its admissibility or suggestion that it was not what it purported to be. Further, there was evidence that Luckwards Hill was also known as Lucker's Hill or Lucketts Hill. Moreover, the updated version of the rules and customs which appears to have been produced in or after December 1980 refers in identical terms to Lucker's Hill having a "right to be Common every third year, being then Fallow" and, in a schedule, identifies Lucker's Hill as comprising the particular fields conveyed to the respondents.
31. The judge also heard evidence from Mr Jolly. He explained that he purchased Luckwards Hill jointly with Mr Laney on 9 March 1984 and bought Mr Laney's share from him in about 2003. He also gave evidence that his predecessor, Mr Dick Bailey, had farmed the land and that he understood from the outset that the land was common land and that the commoners had a right to graze it every third year. He produced a copy of the first agreement he entered into with the Commons Committee dated 20 November 1984, the schedule to which recorded that:

"According to the Rules and Customs of the Manor the Owners of Luckers Hill may crop the land two years out of three. In the third year being then fallow it shall be Common the fallow year starting in 1985."

So also, the memorandum of sale to Mr and Mrs Harris noted that the land to be sold to them was subject to a commoner's right to graze every third year, as did the particulars of sale of the remaining portion of Luckwards Hill ultimately sold to Mrs Moore.

32. The judge also had before him a statement of Mr Colin Mason dated 3 July 2007 admitted under the Civil Evidence Act 1995. Mr Mason was Haywarden of the Committee from about 1972 and his personal knowledge of the rights of common over Luckwards Hill went back over 40 years, that is to say before 1967. It was his evidence that he was the last person to plough Luckwards Hill in the early to mid 1960s, and he did so for the owner of the common at that time, Mr Bailey. In those days, he continued, a crop was grown on the land for two years and then in the third or fallow year, weeds were allowed to grow and cattle were put out to eat the weeds. Mr Bailey seeded the land in the late 1960s and it has been pasture ever since.
33. In the light of all this evidence, I am satisfied the judge was entitled to make the finding that Mr Hall's right of common was exercisable every third year, with 2006 being a commonable year. I would therefore reject this ground of appeal.

Ancillary rights

34. The first issue concerns the declaration made by the judge in paragraph 3(i) of his order that Mr Hall may not exercise his right of common by bringing vehicles onto Luckwards Hill save for the purpose of removing a dead or a sick animal.
35. I have no doubt that the judge made this order in light of the activities of Mr Hall in bringing his vehicles onto the land in 2009 in order to cut whatever was growing there, a matter to which I must return. But on this appeal Mr Bredemear submitted that the declaration was too restrictive in that it would prevent Mr Hall from using one of his vehicles to carry out other activities which might be necessary for the enjoyment of his right of pasture, such as to provide his animals with water in the event of a drought.
36. The correct approach to this issue has been explained in two cases. White v Taylor [1969] 1 Ch 160 concerned a right to graze sheep on some 620 acres of Martin Down in Hampshire. As an incident of this right the plaintiffs claimed a right to place troughs on the down and obtain access with vehicles to their sheep on the down and to the troughs. Buckley J said (at page 196 E) the test must be whether the alleged ancillary right is reasonably necessary for the reasonable enjoyment of the principal or primary right. Applying that test he concluded (at page 198 B-G) that the watering of the sheep grazing the down was necessary for the reasonable enjoyment of the right to graze, and that the plaintiffs were entitled to water their sheep by means of suitably located troughs supplied by carted water. The right was to put troughs wherever it was reasonably necessary to do so for the purpose of watering the sheep without encroaching on the down further than necessary for this purpose. Then (at page 199 B) he said more generally that anyone with a right to graze sheep on the down must be entitled to do anything necessary for their proper care and management. There might be occasions when it would be necessary to take a vehicle on to the down for the purpose of doing something necessary in connection with the sheep, but where the use of vehicle was not necessary for purposes connected with the welfare of the sheep but merely convenient then the use would not be permissible.
37. In Besley v John [2003] EWCA Civ 1737 this court considered rights held by the appellant, a farmer, to graze sheep over some 3,700 acres of Vaynor Common in Merthyr Tydfil. The appellant claimed the right to use his vehicles to tend his sheep. The respondent, the freehold owner of a golf course on part of the common, complained that the appellant had no right to bring feed onto the land, and that vehicles could not be driven on to the land at all except in a case of necessity connected with the welfare of a particular animal.
38. Buxton LJ (with whom Laws LJ agreed) said (at [16]-[19]) the right to graze was only to take to take the grass the sheep could eat; it was not to use the land for all the functions and services that might be attached to the keeping of sheep. It necessarily followed there was no right to bring feed onto the land. As for the right to drive on to the land for shepherding purposes, Buxton LJ considered (at [23]-[25]) the question was what was the reasonable and necessary mode of exercising what was an incident of the right of pasture, that is to say the right to attend to the welfare of the sheep. Moreover, while the extent of the right was to be determined at the date of grant or, if that date was not known, the date of registration, the means of exercise of that right might vary with the requirements of time and locality. On the evidence and as a matter of common sense, shepherding by means of a vehicle over such a large area was a reasonable way to exercise a right to care for the welfare of sheep. But the right had to be exercised reasonably and with the minimum of interference with the rights of the landowner. There must be protected the landowner's interests in not having his land interfered with or damaged more than reasonably necessary.
39. In this case Mr Hall has a right to graze a defined number of animals on Luckwards Hill in commonable years. As an incident of that right of pasture he has a right to do whatever is reasonably necessary for the care and management of those animals. That further right includes but is not limited to accessing the land with a vehicle for the purpose of removing a sick or injured animal. So, for example, if, in drought conditions, it should prove necessary to water the animals then I believe that Mr Hall would be entitled to access the land with a vehicle for the purpose of carting water. But Luckwards Hill is a relatively small parcel of common land and I would make clear the evidence did not begin to establish that it would ever be necessary to bring a vehicle onto the land for general shepherding purposes.
40. As the hearing progressed it became apparent that the respondents did not take issue with these propositions and Mr Randall emphasised that their principal concern was and remains to avoid a repetition of what they perceived to be Mr Hall's wholly unjustified activities in 2009. Accordingly, to address Mr Hall's concern as to drought or other eventualities of a like nature, Mr Randall indicated the respondents would have no objection to a declaration in the following terms in substitution for that made by the judge:

"3. There be a declaration that the Claimant may not exercise his said right of common:

(i) by bringing vehicles onto the said Luckwards Hill save if necessary (and not merely convenient) for the purposes of removing a dead or sick animal or otherwise directly to protect the welfare of a particular animal or animals lawfully grazing on Luckwards Hill pursuant to his said right of common;"

41. I believe this declaration is appropriate because it accommodates Mr Hall's legitimate concerns and provides protection for the respondents against having their land interfered with any more than reasonably necessary.
42. The second issue concerns the declaration made by the judge in paragraph 3(ii) of his order that Mr Hall may not cut or remove anything growing on Luckwards Hill except by "the mouths of his animals", and that such right is limited to commonable years.
43. Mr Bredemear submitted that this declaration is again too restrictive because it does not allow for the removal of injurious or noxious weeds which might harm Mr Hall's livestock.
44. This submission reflected a recognition by Mr Bredemear that it has been established for very many years that a right to graze animals on common land is only a right to put the animals on to the land and allow them to feed there. The right is confined to the taking of grass by the mouths of the animals: Sambourne v Harilo (1621) 123 ER 1162; Wilson v Willes (1806) 103 ER 46; Earl De la Warr v Miles (1880) LR 17 Ch 535. The limited nature of the right is also reflected in the decisions in White v Taylor and Besley v John. It follows that Mr Hall has no right to enter onto Luckwards Hill to cut and remove a crop of hay.
45. Once again, I have no doubt the judge made the declaration that he did in light of Mr Hall's activities in 2009. But, as I say, Mr Bredemear argued that it goes too far because Mr Hall must have a right to remove any weeds that may harm his livestock. Mr Bredemear developed this submission by reference to the Weeds Act 1959 ("the 1959 Act"). Section 1 empowers the Minister to serve upon the occupier of the land a notice requiring him to take such action as may be necessary to prevent particular injurious weeds from spreading, these weeds being spear thistle, creeping or field thistle, broad-leaved dock and ragwort. Mr Bredemear also submitted that Mr Hall is a farmer in receipt of subsidies under the single payment scheme and that the payments he receives include an allocation in respect of register unit CL77. Mr Bredemear continued that, as a farmer in receipt of payments, Mr Hall is required to respect the good agricultural and environmental condition provided for by Article 6 of Council Regulation (EC) No 73/2009. This imposes on Member States an obligation to define at regional or national level minimum requirements for that condition, and that has been done in respect of England by the Agriculture (Cross Compliance)(No 2) Regulations 2009 ("the 2009 Regulations"). These, Mr Bredemear argued, impose upon Mr Hall an obligation to comply with any notice served upon him under the 1959 Act and also to take all reasonable steps to prevent the spread, on and from the common, of defined weeds.
46. I recognise that in general a commoner with a right to pasture his animals may not interfere with the land, even with a view to improving it. But I do not believe this prohibition can extend to the limited action necessary to control weeds which would poison or injure grazing animals and which, if not controlled, would prevent a commoner from exercising his rights of pasture. In my judgment Mr Hall has a right to remove or destroy any noxious or injurious weeds growing on Luckwards Hill so far as may be necessary to prevent harm to any of his livestock properly grazing there in commonable years. This, it seems to me, must be an incident of his right of pasture and an aspect of his right to do whatever is reasonably necessary for the care and management of his livestock. But once again I would emphasise that the respondents are also entitled to have their interest in Luckwards Hill interfered with no more than reasonably necessary. In light of the past activities of Mr Hall it is plainly desirable that any order defines as precisely as possible what it is that Mr Hall may and may not do and gives the respondents an opportunity to assess any action Mr Hall may propose to take and to address any alleged problem themselves. During the course of the appeal Mr Randall indicated that, having regard to the way the argument had developed, the respondents would have no objection to this court making the following declaration in substitution for that made by the judge:

"3. There be a Declaration that the Claimant may not exercise his said rights of common:

…

(ii) by cutting, removing or preventing the spread of anything growing on the said Luckwards Hill, save:

a. by the mouths of his animals; or

b. in the event that there are noxious or injurious weeds (as defined in the Weeds Act 1959, or other regulations having statutory force) present at the said Luckwards Hill, and if necessary to do so for the reasonable enjoyment of his right of common, and having first given at least 1 month's written notice to the freehold owner(s) of the areas of Luckwards Hill alleged to be affected of what such weed(s) are there present and of his intended steps to cut, remove or prevent the same should the freehold owner(s) not first deal with the same;"

47. I believe that, in the circumstances of this case, this declaration does strike the right balance in declaring the extent of Mr Hall's rights and protecting the interests of the respondents. Mr Bredemear's further submissions regarding the rights and obligations of Mr Hall under the 1959 Act and the 2009 Regulations raise interesting questions but in the light of the foregoing it seems to me they can add nothing of substance to the particular issues raised on this appeal. Moreover, there was no evidence that any of the particular weeds identified in the 1959 Act or the 2009 Regulations are growing on Luckwards Hill and no notice has ever been served on Mr Hall under the 1959 Act. Further, Mr Randall indicated that, if a point concerning the application of the 1959 Act or the 2009 Regulations which is not addressed by the revised declaration were to arise in the future and require determination, the respondents would have no objection to Mr Hall raising it in new proceedings. In all the circumstances I need say no more about them.

Restrictions on access

48. Mr Bredemear then turned his attention to paragraph 4 of the judge's order and the declaration it contains that the respondents are entitled to fence around their respective portions of Luckwards Hill, subject to ensuring that access to the common from Jennet Tree Lane (by which I understand the judge to mean the gated access from the track leading to Jennet Tree lane) is not impeded, and that there be a gate between the field owned by the Mr and Mrs Harris and that owned by Mrs Moore.
49. Mr Bredemear explained that Mr Hall's real concern is that he should be able to gain access to Luckwards Hill from field 1574 through gate B and from field 1354 through gate C. Further, Mr Hall used to roll up part of the fence separating the two portions of the common when his animals were grazing there, so as to allow them access to the whole of the common. A single gate is, in Mr Hall's experience, not sufficient to avoid the risk of damage to the common and injury to his animals. Save in these respects, it became clear Mr Hall has no objection to Luckwards Hill being enclosed by fence and hedge.
50. The judge made no findings as to whether the fences and hedges separating Luckwards Hill from the surrounding fields are located on the common. Nor did he make any findings as to when, by whom or the circumstances in which they were erected and planted. Similarly he made no findings in relation to the fence separating Mr and Mrs Harris' field from that of Mrs Moore. But there seems little doubt that Mr and Mrs Harris were responsible for locking gates B and C and preventing Mr Hall from using them to access the common from his neighbouring fields. Moreover, on the order made by the judge, Mr Hall may no longer roll up the fence between the two fields comprising the common itself.
51. In National Trust v Ashbrook [1997] 4 AER 76, Lindsay J helpfully summarised the law relating to fencing and the removal of fences on or around commons before statutes intervened at pages 80G-82B. As appears from the cases to which Lindsay J there referred, the question is whether the commoners have been left with reasonable access and whether their rights of common can still conveniently and sufficiently be exercised. We were also referred by Mr Bredemear to s.38 of the Commons Act 2006 and to its predecessor, s.194 of the Law of Property Act 1925, which render unlawful the erection of a fence or the construction of other work whereby access to common land is prevented or impeded.
52. In the event we did not hear full argument on these issues because Mr Randall indicated that the respondents would meet Mr Hall's concerns by agreeing to the following modification of the judge's order:

"4. There be a Declaration that the Defendants are entitled to fence around their respective holdings, subject to ensuring that, during commonable years:

(i) access to the common at Luckwards Hill from the track leading to Jennet Tree Lane is not impeded by them;

(ii) access to the said common through gates B and C on the said plan annexed hereto is not impeded by them for so long as (a) the Claimant remains entitled to bring his animals onto the land and fields adjoining the said common at/immediately to the east of the said gates B and C, being the fields numbered 1574 and 1354 on the said plan; and (b) the Claimant ensures that the gates B and C are kept shut (save only, during commonable years, for allowing his animals to pass through the same before or after lawfully grazing on Luckwards Hill pursuant to his said right of common);

(iii) there be two gates on the boundary between the land owned by Mr and Mrs Harris and the land owned by Mrs Moore."

53. This offer was acceptable to Mr Hall and I am satisfied that it is a declaration which it is proper and appropriate to make. Under the terms of the judge's order, Mr Hall is free to take his animals out on to the track and to access the common through the main gate close to Henwick Cottage. But this is plainly much less convenient for him than accessing the common directly from his fields through gates B and C. Further, I have no doubt that requiring Mr Hall's animals to pass from one portion of the common to the other through a single gate does not afford them reasonable access to the whole of the common. This modified declaration is therefore one to which Mr Hall is entitled on any basis and it is not necessary to reach any final conclusion as to the effect of s.38 of the Commons Act 2006 or s.194 of the Law of Property Act 1925, and in the light of the judge's limited findings and not having heard full argument, I prefer not to do so.

Mr Hall's activities in 2009

54. The activities of Mr Hall in 2009 are the subject of the appeal and the cross-appeal. In the summer of that year Mr Hall entered onto Mr and Mrs Harris' portion of Luckwards Hill and cut and removed what was growing there.
55. The judge heard evidence from Mr Hall and had photographs before him which suggested that weeds were growing on the common and at least some of what Mr Hall removed was burned. However, it is clear that the judge did not accept Mr Hall's evidence that he only removed weeds, preferring the evidence of Mrs Harris that Mr Hall also removed some hay. But the difficulty facing the judge was that he had no satisfactory evidence upon which to make a finding as to the value of what was removed. In these circumstances he felt unable to award more than nominal damages.
56. Mr Bredemear submitted that the judge fell into error in awarding Mr and Mrs Harris nominal damages. He argued they should not have been awarded anything at all because Mr Hall's rights of common alone exhausted the sufficiency of the land.
57. Mr Randall countered that the judge did not accept Mr Hall's evidence that he had only removed weeds. Further, Mr Hall accepted in cross examination that if what he removed was a crop of hay rather than weeds, the sum pleaded as the value of the crop was a reasonable one. In these circumstances, Mr Randall continued, Mr and Mrs Harris were entitled to the claimed sum of £1,200.
58. I am not persuaded by any of these submissions. Mr Hall had no right to enter onto Mr and Mrs Harris' field with his agricultural machinery and cut and remove any hay. He was trespassing when he did so and Mr and Mrs Harris were therefore entitled at least to nominal damages, as I think Mr Bredemear was disposed to accept. But it was for Mr and Mrs Harris to establish any further loss and that they failed to do. The fact that Mr Hall may have accepted that the value of a full crop of hay would have been £1,200 does not assist them because the judge did not accept that such a crop was ever taken. He only found that at least some of what was removed was of value.
59. I would therefore dismiss this ground of appeal and the cross-appeal.

Conclusion

60. I would allow the appeal to the limited extent of substituting the revised declarations set forth at [40], [46] and [52] above for those made by the judge. Save for these revisions, I would dismiss the appeal and the cross-appeal.

Lord Justice Richards

61. I agree.

Lord Justice Maurice Kay

62. I also agree.