In February, I wrote an article published in the Rights of Way Law Review on Access and Management under the Commons Act 1899. One hundred and fourteen years on from that Act, there had been no significant cases through the higher courts to throw light on the workings of the Act. So it seemed safe to put pen to paper. As these things happen, a few months later, judgment in Norbrook Laboratories Ltd and Lord and Lady Ballyedmond v Carlisle City Council was handed down. It’s about a small common just outside Carlisle, Corby Beck Wood, which is subject to a scheme of regulation and management made under the 1899 Act.

As with many such schemes, this one was made in the early years of the twentieth century, by the then Carlisle Rural District Council. The schemes, which can still be made today, are a deal between the landowner and the local authority: the authority gets to manage the land primarily for recreation, the landowner is relieved of the day-to-day responsibility while reassured that byelaws will be made to address delinquent behaviour, and the public (formerly the local inhabitants) is given a right of access. The schemes must follow a template contained in regulations (these are the current regs). At least 350 schemes have been made since 1899. You can see the scheme and map for Corby Beck Wood, with thanks to Natural England.

Norbrook, the first claimant, managed Corby Beck Wood for the Ballyedmonds (if you’ve spotted the paradox in this statement, we’ll come back to it later), and wanted to fell some trees on the common and replant. It applied to the Forestry Commission for a licence and grant. The Commission said the land was a public open space used for the purposes of public recreation and exempt from its controls under section 9(2)(b) of the Forestry Act 1967. The council reacted by making a tree preservation order. Norbrook was displeased. Norbrook and the Bellyedmonds challenged the council’s decision.

Two of the grounds of the action were predictably targeted on procedural aspects of the council’s decision to make the TPO. They failed. So the claimants also decided to show that the common was not a public open space, therefore tree felling on the common was capable of being licensed by the Forestry Commission, thus the TPO was redundant. But on the face of it, the common clearly was a public open space under the terms of the scheme.

There are occasionally cases where one soon concludes that a party is on a hiding to nothing — and this is just such a case. Counsel ambitiously argued that the effect of the scheme was to confer new rights of common on the local inhabitants (who at that time were the beneficiaries of the rights of access conferred by the scheme); that such scheme rights had to be registered under the Commons Registration Act 1965 (of course, they hadn’t been); that the scheme rights had been extinguished for want of registration (which if they existed, they would have been); and therefore that the scheme rights (being registrable but ultimately unregistered rights of common) had been lost along with the rights of access (which were said to be parasitic on the scheme rights). As the judge put it, “[the argument] seems to me to be based on a number of non-sequiturs.”

The judge drew heavily on the decision of the judicial committee of the House of Lords in Lewis v Mid Glamorgan County Council. In that case, the local authority had compulsorily acquired part of Coity Wallia common for a reservoir. The common was regulated by an order made under the Commons Act 1876 (a pioneer of commons legislation and the predecessor of the 1899 Act), which also provided for public access. The compulsory purchase order extinguished the rights of common, but the reservoir was not built. The authority wanted to sell the land free of any restriction. But the House ruled that the land remained registered common land no longer subject to rights of common, and the rights of access endured.

The judge derived “the general principles enunciated by the House of Lords in Lewis v Mid Glamorgan, namely that a public right of access created for the specific purpose of ensuring access to an open space for the benefit of the public and the neighbourhood is not to be extinguished save by clear words or inescapable implications. No such clear and unambiguous words have been identified in this case.”

The curiosity of this case, already alluded to, is that the first claimant, Norbrook, was described in the judgment as “responsible for carrying out all works to and maintenance of the Land”. The council wanted to stop Norbrook from cutting down the trees and replanting; there was also an earlier dispute over a fence erected by Norbrook. That is why the council made the TPO. But under the 1899 Act, “The management of any common regulated by a scheme made by a district council…shall be vested in the district council.” Indeed, article 3 of the scheme for the common specifically requires the council to preserve the trees. Why did the council need to make a TPO if it, as opposed to Norbrook, had management control? The point is nowhere addressed in the judgment. Perhaps the council remains strangely ill-informed about the nature of its interest in its scheme commons. Or perhaps, it was more than happy for Norbrook to bear the cost of managing the common, relieving council tax payers of its duty to manage — just so long as Norbrook didn’t do anything controversial. If so, the last thing it wanted was to intervene and assume management responsibility now (presumably, after having abandoned it many years ago)