PannageMan

Is there a right to cycle on common land?

Cycling across Coldham’s Common, Cambridge. There are plans to upgrade to a formal cycle track across the common. © John Sutton cc-by-sa

On the face of it, the answer is ‘no’. Leave aside public roads (including byways open to all traffic), restricted byways and public bridleways (which cyclists may use subject to an obligation to ‘give way to pedestrians and persons on horseback’: s.30 of the Countryside Act 1968, an obligation which is presumably integral to the offence of cycling ‘without reasonable consideration for other persons using the road’, under s.29 of the Road Traffic Act 1988). On the majority of commons to which there is a public right of access under Part I of the Countryside and Rights of Way Act 2000 (CROW), the right is, ‘to enter and remain on any access land for the purposes of open-air recreation’ (s.2(1)) subject to the general restrictions in Sch.2. And para.1(a) of Sch.2 sets out that the right does not entitle a person to be on land if that person, ‘drives or rides any vehicle other than an invalid carriage’. Let’s park for a moment whether a bicycle is truly a ‘vehicle’ for the purposes of Sch.2.

But CROW is not the only statutory right of access to common land. Prior to the enactment of the CROW rights, many commons — often estimated at one fifth — were subject to rights of access conferred under older laws, and these were preserved by s.15(1): the commons to which such pre-CROW rights apply are therefore often referred to as ‘s.15 commons’.

The most significant of these pre-CROW provisions are the ‘rights of access for air and exercise’ conferred by s.193 of the Law of Property Act 1925. It is a right exercisable on commons which are now, as a shorthand, described as ‘urban commons’, but strictly, commons which, immediately before local government reform in 1974, were in the (London) Metropolitan police district, a borough or an urban district, and commons to which s.193 has been applied by virtue of a deed (revocable or irrevocable) executed by the owner under subs.(2).

The ‘rights of access for air and exercise’, conferred by subs.(1), are not attributed to any particular class of user (such as persons on foot), but para.(c) of the proviso to subs.(1) says that, ‘such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle’, and indeed, subs.(4) makes it an offence to draw or drive any of these things on a s.193 common. Para.(a) of the proviso also renders the rights subject to any byelaws or other statutory controls on the common, and para.(b) enables the Secretary of State to impose ‘limitations’ on the exercise of the rights. (In the early days of s.193, it was the practice of the Minister to impose a raft of template restrictions, similar to the byelaws applicable to public open spaces.)

In the now widely known High Court case, R v Secretary Of State For Environment, ex parte Billson, Sullivan J (as he then was) found that ‘Not merely do paragraphs (a) to (d) [of the proviso to subs.(1)] not specifically exclude horseriding, but paragraph (c), which excludes the drawing or driving of carriages, carts, et cetera, would be otiose (or addressed specifically to motor vehicles) if the public were not allowed to bring horses on to commons at all.’ He concluded (para.88) that s.193 rights did extend to horse riding on s.193 commons, adding that, ‘Riding would have been a normal way of taking air and exercise in 1925.’ (In a wry comment on the judgment, Gadsden on Commons, edited by Edward Cousins, observes at para.9–09, fn.27, that: ‘Perhaps it would be safer to say that it would have been normal for a certain section of society.’) While it is possible to criticise the judge’s reasoning (it might be said that para.(d) was there for reinforcement), the judgment has stood for nearly 20 years, was entirely consistent with the interpretation of s.193 expressed in many orders of limitation imposed by Ministers since 1925 (which regulate rather than prohibit the exercise of implied rights of access for horse riding), was consistent with one of the two opinions of the Divisional Court in the earlier case of Mienes v Stone, and simply makes sense — as Sullivan J noted (at para.90), ‘If horseriding caused a problem on any particular common then limitations and conditions could be and have been imposed prohibiting horseriding under paragraph (b) of the proviso.’

Do the s.193 ‘rights of access for air and exercise’ apply also to cycling? There has been no case directly turning on s.193, but the conventional view is that they do not. Classically, a bicycle is considered to be a carriage, and carriages are excluded by para.(c) of the proviso, as are ‘other vehicle[s]’. Indeed, it is an offence to draw or drive these things on a common under subs.(4).

‘Classically’, because there have been a significant number of cases which have had to decide whether a bicycle is a carriage, or a vehicle, for the purposes of various enactments. See, for example, Corkery v Carpenter, as to which the headnote to the report ([1951] 1 KB 102) summarises: ‘The word “carriage” in s.12 of the Licensing Act, 1872, by which “every person who…is drunk while in charge on any highway…of any carriage, horse, cattle, or steam engine…may be apprehended, and shall be liable to a penalty…or…to imprisonment…”, includes a bicycle’. S.12 remains in force today, and is also the only criminal sanction against riding a horse while drunk. The case is notable that counsel for the defendant quoted to the court the words of Daisy Bell:

‘It won’t be a stylish marriage,

I can’t afford a carriage,

But you’ll look sweet upon the seat

Of a bicycle made for two.’

The report does not tell us whether counsel sung the words, but he did point out, to no avail, that the song recognises what the law perhaps does not — that a bicycle is not a carriage.

There is a splendid exploration of some of the authorities touching on whether bicycles are carriages or vehicles in Coates v Crown Prosecution Service, an appeal to the High Court by way of case stated, against a conviction for riding a Segway (remember those?) on the pavement, contrary to s.72 of the Highway Act 1835, which makes it an offence to: ‘wilfully ride upon any footpath [i.e. pavement] or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or…wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway’ — another venerable offence which remains in force, if widely ignored. There was some confusion in the information laid against Mr Coates as to whether he was accused of riding upon the footpath, or driving upon it, but the court found that, to the extent it was necessary to make a finding, he was guilty of both, a Segway being a carriage for the purposes of the provision and the defendant was ‘driving’ it — and ‘riding’ it too. The case cites the key precedents:

• Taylor v Goodwin (1879), which found that riding a bicycle was ‘driving any sort of carriage’ for the purposes of s.78 of the Highway Act 1835, and so the appellant was guilty of furiously driving a carriage.

S.85(1) of the Local Government Act 1888 subsequently provided that: ‘…Bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highway Acts…’ (just about the only provision of that Act which remains in force: the ellipses refer not to omitted text, but to the repealed words in the section, of which the words quoted are the only words which remain extant). In the late C19, the Highway Acts provided not just for the management of highways, but the regulation of traffic using them: legislation which (greatly evolved) is now found in the Road Traffic Act 1988 and the Road Traffic Regulation Act 1984.

• R v Parker (1895), a cyclist was a person ‘having the charge of any carriage or vehicle’ under s.35 of the Offences against the Person Act 1861, and so guilty of causing bodily harm by furious driving.
• Ellis v Nott-Bower (1896), a bicycle was a vehicle used for displaying advertisements contrary to s.12 of the Liverpool Corporation Act 1889.
• A cluster of toll road or turnpike cases, Williams v Ellis (1880), Cannan v Earl of Abingdon (1990), Simpson v Teignmouth and Shaldon Bridge Company (1903) and Smith v Kynnersley (1903), to determine whether tolls applicable to carriages could be applied to bicycles — only in Cannan was it so determined, but the courts were required to interpret detailed statutory rules in each case on what could be charged and how much. The Cyclists’ Touring Club were behind some of these cases, arranging for all sorts of bicycles, including bath chairs and tricycles, to be driven over the ways concerned to test the legislation.
• Pollard v Turner (1912), not cited in Coates v Crown Prosecution Service, but worth a mention, because the offence was committed by sending out on a bicycle a boy to sell bread, contrary to s.7 of the Bread Act 1836, which required ‘any cart or other carriage’ used for that purpose to carry scales.
• Corkery v Carpenter (1951), see above

The difficulty is that all of the cases wrestle with language in legislation enacted in an era before cycling was popular, and bicycles were at best primitive and eccentric. Wikipedia refers to the ‘second bicycle craze‘ in the 1890s (the first craze in the 1860s and 70s hardly meriting the description). It is all very well to look at s.72 of the Highway Act 1835, or s.12 of the Licensing Act 1872, and conclude that Parliament sought to regulate passage along roads by users who were not on foot (or if on foot, were in control of animals). In those circumstances, it was reasonable to assume that Parliament intended to apply the controls — on riding or driving on the pavement, or riding or driving while intoxicated — to a widespread class of users including those unanticipated at the time, viz, cyclists, as they applied to horse riders, carriage drivers, drovers and sumpters.

But what of s.193 of the Law of Property Act 1925? S.193 originated as a backbench amendment to what became s.122 of the Law of Property Act 1922, later consolidated in the 1925 Act. It was enacted long after cycling had become commonplace, and over thirty years after s.85 (as enacted) of the the Local Government Act 1888 abolished local byelaws on cycling, declared cycles to be carriages for the purposes of the ‘Highways Acts’ (certainly including the Highway Act 1835), and required cyclists to carry lights at night and to ring a bell when passing other carriageway users. If horse riding was ‘a normal way of taking air and exercise in 1925’, so too was cycling. Yet s.193 has nothing to say on the subject. It can hardly be said that Parliament was not cognisant of cycling in 1922, yet it conferred a right of access which, as we have seen, extends to horse riding — and surely includes, for example, swimming (where possible), dog walking and pram pushing — and expressly restricted only the use of ‘a carriage, cart, caravan, truck, or other vehicle’, a class of things which, in this context, carries a strong implication of heavy conveyances which might injure the common and interfere with the exercise of the rights of access and rights of common. Even if ‘other vehicle’ might otherwise be said to include a bicycle, the euisdem generis rule of construction suggests that a cycle no more belongs in the class than a skateboard or a scooter. It is no argument to say that mountain biking in the twenty-first century is far more intrusive than cycling on paths in 1922: what matters is the intention of Parliament at that time.

This blog does not assert that cyclists are among those who may exercise the rights to air and exercise under s.193 — only that the point is not, in Pannageman’s view, free from doubt. Arguably, the same considerations arise under schemes of regulation and management made under Part I of the Commons Act 1899, which typically confer (in the words of the current template scheme contained in the Schedule to the Commons (Schemes) Regulations 1982 (SI 1982/209)), ‘a right of free access to every part of the common and a privilege of playing games and of enjoying other kinds of recreation thereon, subject to any byelaws made by the Council under this Scheme.’ And whatever the position with legal rights, there can be no doubt that such rights may be regulated, or perhaps even suppressed, by byelaws or limitations to the contrary.

And the CROW right of access, which is excluded from a person who, ‘drives or rides any vehicle other than an invalid carriage’? Well, in R v Parker, which we met above, a cyclist was a person ‘having the charge of any carriage or vehicle’ under s.35 of the Offences against the Person Act 1861, although I have not seen a report of the case to ascertain whether the court found that a bicycle was both a carriage and a vehicle. But the CROW restrictions on the right of access in Sch.2 to CROW are imported largely unchanged from the Second Schedule to the National Parks and Access to the Countryside Act 1949, where they applied to land to which access was conferred under an access agreement or order. What is notable about that Second Schedule, however, is a certain assonance with the approach in section 193 of the 1925 Act: neither provision expressly refers to horse riding or cycling. There is no parallel in the Second Schedule to the 1949 Act to para.1(c) in Sch.2 to CROW, which excludes a person who, ‘has with him any animal other than a dog’ — although the Second Schedule does exclude a person who, ‘takes, or allows to enter or remain, any dog not under proper control’. Just as we may infer that the 1925 Act and 1949 Act rights are available to horse riders for want of an exclusion where one might be expected, so the exclusion of carriages (in the 1925 Act) and vehicles (in the 1949 Act) is not necessarily intended to exclude cyclists from enjoying those same rights. Whether the same argument can be spun forward into the CROW Act is another matter. For what it’s worth, I can confirm that the small team of civil servants involved in drafting Part I of the CROW Bill did expect cycling to be excluded by virtue of the reference to vehicles. But we shall need a doughty successor to Robert Billson to answer these questions for certain.

The judgment of the Court of Appeal in Littlejohns and Littlejohns v Devon County Council and the Duchy of Cornwall, handed down on 6 May 2016, tries to settle the vexed question of whether rights of common can be acquired by prescription after 1970, over land which was already registered common land. It’s best to start with the background in my previous blog, where you may, if you wish, also read about the judgment in the High Court.

The appellants, Mr and Mrs Littlejohns, were fortunate, in both this court and below, to have Nicholas Le Poidevin QC acting for them: Mr Le Poidevin is the former deputy Commons Commissioner with considerable experience in this area. But in the event, by a two-to-one majority, the Court of Appeal has upheld the judgment of the High Court, and found against the appellants. Accordingly, subject to any appeal to the Supreme Court (and the brief report on the Landmark Chambers website states that permission to appeal was refused by the Court of Appeal: it could still be granted on an application to the Supreme Court), the law is that no rights of common can have been acquired by prescription over registered common land since 1970, and any commoner who (as did the appellants) continued grazing after 1970 without having registered any rights of common, cannot point to any legal authority for doing so.

The appellants’ circumstances are not unique: this case was taken as far as the Court of Appeal not least because there are others who are seeking to resolve precisely the same point of law applicable to their own circumstances. Some of them may have pending applications with the defendant authority, or another pioneer commons registration authority, to register other rights of common said to have been acquired by prescription in the same way. There are surely a good number of commoners who exercise ‘rights of common’ which are founded in long-standing practice originating with previous generations, but, for some reason or other, the rights were not properly registered under the Commons Registration Act 1965 (‘the 1965 Act’). And there will be others who do not seek to justify their grazing in long-standing practice, but nevertheless have increased their grazing activity beyond what was registered under the 1965 Act, and now hope to acquire permanent recognition for it through prescription. Last week’s judgment ensures that they will be disappointed: indeed, in some cases, the judgment could threaten the viability of upland holdings where the farmer has come to rely on the use of those rights.

The Chancellor of the High Court, an ex officio judge of the Court of Appeal, Rt Hon Sir Terence Etherton, gave the dissenting judgment, and in my view, gets it right, so we will start with the Chancellor. Much of the Chancellor’s judgment includes a summary of the background and statutory provisions (paras.1 to 34) and the judgment of Lang J in the High Court (paras.35 to 48). In his overview of the appeal (paras.51 to 72), the Chancellor gives considerable attention to the recommendations of the Royal Commission on Common Land, reporting in 1958, and how the 1965 Act followed, but also departed from, its recommendations.

The Chancellor observes that the defendant authority’s case relies on the abolition of prescription by the 1965 Act. He says (para.76) that such a significant change to property rights ought to be effected by specific words, and focuses on s.1(2) of that Act, which is the only provision to which such consequences could be attributed, but he finds no such words present (para.77). Nor were there any words of comfort in the Parliamentary proceedings on the Bill in Hansard (para.78). Even the Commons Registration (New Land) Regulations 1969, which provide for the registration of new rights of common under s.13 of the 1965 Act, fail to explain why an application cannot be made to register rights over existing common (para.79).

If s.1(2) does not abolish prescription, the Chancellor considers whether s.1(2) has the effect that a right acquired by prescription is abolished at the very moment when prescription matures into a right? This would be after 20 years prescription, based on a ‘lost modern grant’ — the legal fiction that the prescriptive practice can be attributed to a former grant made by the person prescribed against (in this case, the owner of the common) which has since been lost. But he finds that s.1(2)(b), which extinguished unregistered rights of common, applies only to rights already in existence in 1970 (para.81) — were it otherwise, here too the effect would otherwise be to abolish prescription without clear words to that effect (para.82).

The Chancellor derives (para.83) some comfort from the date set by order at 31 July 1970, as the date on which unregistered rights of common were extinguished under s.1(2)(b). If the intention was that s.1(2)(b) should apply to all rights, whenever created, rather than those capable of being registered by the closing date for applications for registration under s.4 of 2 January 1970, it should have had effect on any right created after it became too late to register it, on 2 January 1970, and not on 31 July 1970 [though in my view, this may pay too much respect to those who drafted the SIs].

The Chancellor notes the argument (para.84, also expressed in my previous blog) that there is a circularity between s.1(2) and s.13. If we think of s.13 in relation to new rights of common acquired over previously unregistered land (an unlikely scenario these days, but let us suspend scepticism), the new rights become registrable under s.13 after 20 years use as of right (on the basis of a presumed lost grant). [He does not say, but it might be put like this: if s.1(2) has continuing effect, those rights, supposedly maturing on the last day of the 20th year, are immediately extinguished “unless they are registered”. Is the commoner to register them at the stroke of midnight on that last day of the 20th year, before s.1(2) does its worst an instant later?] Accordingly, the Chancellor finds (para.86) that s.1(2)(b) extinguishes only rights which existed and were capable of registration on or before 2 January 1970, and inevitably, that s.1(2)(a) (which deems unregistered land to be neither common land nor town or village green) has similar effect (para.85). In other words, the Chancellor thinks that s.1(2) has a ‘big bang’ effect, wipes the slate clean of anything which could have been registered prior to 2 January 1970 but was not registered (commons and greens could however be registered by the registration authority on its own protective initiative up until 31 July 1970), but has no further continuing or prospective impact. He notes (para.85) an oddity if s.1(2)(b) has continuing effect: s.1(2)(a) cannot have the same continuing effect, else no land could ever become common land, and s.13 would be largely redundant.

The Chancellor recognises (para.87) that the 1965 Act was, at least so far as common land and rights of common are concerned, a staging post to comprehensive legislation, and it is not necessary to ascribe to the 1965 Act an intention of establishing a ‘conclusive and comprehensive register’ which had to await further legislation under the Commons Act 2006 (‘the 2006 Act’). Interestingly, the Chancellor identifies a now oft-forgotten objective of the Royal Commission: to provide for improvement and agricultural intensification of common land where appropriate. That is not to say that the Commission wanted to resurrect the inclosures, but it did not view all commons with a dewy-eyed perspective of preservation. The Chancellor quotes (para.57) the Commission’s report: “…we assume that, given the right circumstances, commoners who have pasture rights will generally endeavour by the better stocking of their common to attain the same level of economic production that has been achieved by the rest of the agricultural industry…”. The Chancellor is convinced (para.88) that the 1965 Act was not intended to fly in the face of the Commission’s perspective, by removing the mechanism of granting new rights (whether by prescription or express grant) over a registered common. And he finds nothing in the 1965 Act nor the 2006 Act which interferes with his conclusions.

The Chancellor also observes that s.13 did enable amendment of the registers to take account of a variation in a registered right of common, and considers that such a variation could embrace an enlargement of the right (para.89): there was “quite simply no discernible reason” why the 1965 Act should have allowed this, but turned its face against the grant of new rights. The Chancellor accepts the widely-held belief that the 1965 Act was poorly drafted, and concludes: “the 1965 Act should be interpreted so far as possible to give effect to a coherent policy, consistent with the objectives of the Royal Commission”.

But the Chancellor is in a minority. Lewison and Tomlinson LJs do not agree, and as a majority, they find for the defendant authority.

Lewison LJ opines that the 1965 Act was intended to establish definitive and conclusive registers. He refers (paras.113 to 114) to the report of the Royal Commission in pursuance of that objective [which undoubtedly is what the Commission intended], and (para.115) to the explanatory notes to the 2006 Act, which says, “The 1965 Act was intended to establish definitive registers” [my italicisation: it is in any case quite worrying if judges are going to pray in aid quotations from Explanatory Notes to Acts, given the minimal effort put into writing them nowadays]. But the judge admits (para.117) that, “the Act did not precisely implement all the Commission’s recommendations”, and quotes Mr Le Poidevin describing it as ‘half-baked’ (para.124). Lewison LJ finds (para.132) that s.1(2)(b) simply extinguishes any unregistered right of common which would otherwise be exercisable over registered common land. He thinks (para.137) that, were it otherwise, the system of registration established by the 1965 Act would be “all but pointless”. He relies for support on Lord Hoffmann in The Trap Grounds.

[I would say that the 1965 Act was not intended to be the last word in registration — it took another 40 years to achieve that. As for the Trap Grounds, the courts accepted that the provision in the 1965 Act for the registration of greens was somehow different, and final: there was no need for further legislation (were it otherwise, we would still be waiting for a legal right of use of new greens registered under section 13): Lord Hoffmann said (para.48, Trap Grounds): “It is by no means clear that Parliament contemplated further legislation about rights over village greens.” He did not suggest for a moment that the same conclusion would be justified in relation to common land, and rights of common.

Lewison LJ accepts that the 1965 Act did not compel amendments to the registers to keep them up-to-date, so undermining the argument that the registers were intended to be conclusive. So he takes comfort from concluding (para.139) that, “at least the register will reflect the maximum burden to which the registered common is subjected” [but not if the Chancellor is correct that a variation under s.13 might increase the burden]. He refers to the anomaly that a farmer who has an express right granted in 1955, but fails to register the right, would have lost it for want of registration in 1970, and by 1975 would have nothing to show for his 20 years grazing. But a neighbouring farmer who started grazing in 1955 as of right would have acquired a (non-registrable) prescriptive right in 1975, and would be better off than his neighbour who relied on the express grant. Apart from the odd discrimination between these two farmers, it gives rise to a legal anomaly: the neighbour’s claim to a prescriptive right relies on a lost grant made on or before 1955. If such a lost grant really did exist, then it was indeed registrable in 1970, and must have been extinguished for want of registration. The Chancellor, in his judgment (para.96), got round this by asserting that a claim on the basis of prescription could therefore not rely on any use prior to 1970 (it would have to be 1970 onwards to at least 1990); Lewison LJ, not unreasonably, criticises that approach as putting a gloss on the legislation which is not there.

[This is valid criticism: but the lost grant is indeed a legal fiction, and legal fictions regularly lead to legal anomalies. In Bakewell Management Ltd v Brandwood, cited by Lewison LJ, the House of Lords decided that a lost grant of a right of way across common land could be inferred from 20 years’ use despite use of the right of way being illegal without the landowner’s consent. This leads to the very odd anomaly that for 20 years, the user is committing a criminal offence, but on the last day of the twentieth year, not only does the user become lawful, but apparently, the previous criminality is erased, for the law now assumed that the user was done with the benefit of a ‘lost grant’ made at the start of the 20 year term. Can the user get a pardon for past convictions?]

Lewison LJ is not impressed with arguments that his finding allows for interference with property rights without clear words in the legislation. He says that the 1965 Act clearly did interfere with property rights [i.e. in general terms, those of commoners and landowners]; prescription itself interferes with the landowner’s property rights; landowners may, if they wish to expressly grant rights in the face of the court’s finding, do so by granting a leasehold term which is not registrable and therefore not affected by s.1(2)(b) [but would such a right be exercisable competitively alongside other commoners with ‘real’ rights?]; there is no interference with the landowner’s other interests, such as to grant easements [this hardly seems relevant]; in promoting the Commons Bill in Parliament, the Minister accepted that there was controversy over whether prescriptive rights could still be created [indeed — but this is, as I commented in my previous blog, agnostic evidence: Parliament was leaving it to the courts to decide]; and the Royal Commission wanted no further claims in respect of registered commons [leaving aside whether the Commission’s recommendations were given proper effect, one questions whether the Commission had in mind claims which could not even be made at the cut-off date for registration]. Lewison LJ concludes that, “If Mr Le Poidevin is right then the [1965 Act] register is virtually useless”.

[Well, quite so. In my view, that is why further legislation was contemplated by the Act itself, and passed in 2006. It’s just that, in 1965, no-one contemplated that it would take 40 years for new legislation to polish off the work commissioned by the 1965 Act. Indeed, Ministers said at the time that it would take Commons Commissioners five years to sort out the disputes engendered by provisional registration under the 1965 Act — but it was not until Mr Le Poidevin himself determined the final case in 2010 that this work was done. If the drafters of the legislation thought it would all be sorted out by 1975, and further legislation would follow, then it was of little matter if interim legislation had only interim effects. The judge asks: “why did Parliament prohibit registration of new rights of common over common land registered under the 1965 Act, if it did not intend that they should no longer be capable of acquisition?” That would be a good question, if it were correct. But it isn’t. True it is that the 1965 Act did not confer powers to register such rights. But it was only r.3(2) of the Commons Registration (New Land) Regulations 1969 which prohibited registration. Attributing to Parliament an intention in secondary legislation subject only to negative resolution goes too far.]

Tomlinson LJ agrees with Lewison LJ, briefly citing eight points which have proved decisive:

• the intention of the 1965 Act to establish a definitive register (albeit one not conclusive of extent of common land);
• the natural meaning of s.1(2), that after 31 July 1970, unregistered rights of common were not to be exercisable;
• the reference to ‘any such land’ in s.1(2)(b) over which such rights were no longer to be exercisable was intended to mean registered common land;
• s.1(2)(a) referred to “no land capable of being registered under this Act” but s.1(2)(b) referred only to “no rights of common shall be exercisable”: it therefore did not distinguish rights which were capable of being registered under the Act;
• s.13 was concerned with land which became common land after 31 July 1970;
• r.3(2) of the Commons Registration (New Land) Regulations 1969 properly gives effect to the scheme of the parent Act;
• the 1965 Act did intend to effect the prospective abolition of prescription for rights of common, in line with the intentions of the Royal Commission; and
• the alternative approach subscribed to by the Chancellor would involve an anomalous treatment of rights acquired by lost modern grant.

In my view, the Chancellor, in his judgment, gets under the skin of the 1965 Act and better understands the scheme of that Act — to the extent that it had a scheme. Nevertheless, unless there is an improbable appeal, the matter has now been decided. One can only wonder what will happen to the Littlejohns’ grazing activity on Okehampton Common and the Forest of Dartmoor. The court has decided that their grazing can have no lawful origin. Yet the landowner, the Duchy of Cornwall, has taken no part in the proceedings. Will the landowner, or any commoner (we cannot now rightly call the Littlejohns ‘commoners’), take action to exclude the Littlejohns from grazing on the commons — even though they, and their father, have been grazing the commons for decades?

Okehampton Common: Copyright David Brown and licensed for reuse under this Creative Commons Licence.

The judgment can also be seen with brief comment from Landmark Chambers: Stephen Whale of Landmark acted for the defendant authority.

Some 20 or 30 years ago (the details are now a little hazy), the then Department of the Environment commissioned a huge study of the common land in England. The contract was let to the Rural Surveys Research Unit (RSRU) at the University of Wales, Aberystwyth, and was done by a team led by Prof. John Aitchison. Although the start date is uncertain, the final report was not presented until summer 2000 — by which time digitisation of large datasets had begun to catch up with the project, although it didn’t start out like that. The report is generally referred to today as the ‘biological survey of common land’, although that appellation does not do justice to the breadth of the data gathered.

The outputs were colossal, and comprised:

• a database of every registered common in England, with details of size, location, registered ownership, rights of common, natural context and other aspects;
• a series of county reports focused on the nature conservation character of common land in that administrative area (those which were prepared by the RSRU in electronic format, about half, are available via the National Archives web archive of the Defra website);
• a series of county volumes containing datasheets for each of the commons in the administrative area;
• a national overview report of the project.

The database was exported into an Excel spreadsheet, and this is still available, now on gov.uk; however, the export truncated all long text fields in the database, so that the spreadsheet is valuable for the numeric data, but frustratingly incomplete for verbal analysis. This last defect has now been rectified, as the data, including the original Microsoft Access database, are now available for download on data.gov.uk. The publication of the data is part of the Government’s drive to make more public data available online, and one expectation is that people will be able to make innovative use of the data. One early example of that is the common-land.com, which converted the Excel spreadsheet into html form for presentation on a dedicated website. Now that the dataset is available in its original unabridged form, perhaps others will find new uses for the data?

Incidentally, the RSRU performed a similar, independent survey of town and village greens, with the support of the Women’s Institute whose members conducted local surveys of individual greens. One of the outputs of this survey is the database of town or village greens (in pdf on gov.uk and in Excel on the National Archives web archive), although this too suffers from truncation.

It is often said that the registers of common land (and town or village greens) drawn up under the Commons Registration Act 1965 (the 1965 Act) are out-of-date. And so they are: they were, after all, initiated by applications for registration made between 1967 and 1969. While it has remained possible to apply to modify the registers for certain purposes (and there is no charge for doing so), there has been no compulsion to do so, and many changes affecting what is shown in the registers have gone unregistered, leaving the registers an ever less comprehensive record of commons and the rights which are exercisable over them. (What follows refers to the registers of common land, but similar issues can apply to the registers of greens, albeit less frequently a cause for concern.)

Legally, this does not strictly matter. There are nine commons registration authorities pioneering the implementation of Part 1 of the Commons Act 2006 (Part 1), and where steps are being taken to update the registers. Outside these areas, the registers are “conclusive evidence of the matters registered, as at the date of registration (1965 Act, s.10, my italicisation). So, to the extent that the registers are now incomplete or inaccurate, the registers must be read alongside any other evidence of events subsequent to 1969 which affects the veracity of what is shown in them. For example, a commoner (the owner of a right of common) may have entered into a deed with the owner of the common, surrendering the right to the landowner, which has the effect of extinguishing the right for all time. The extinguishment of the right may (and should) be registered (under s.13(a) of the 1965 Act), so as to cancel the registration of the right in the register. But there is no obligation on anyone to do so: indeed, an application for such and similar purposes may be made only by a person having an ‘interest’ in the matter — see r.29 of the Commons General Regulations 1966 (SI 1966/1471) as amended by SI 1968/658 here. To any assertion that the register shows that the right exists, and were conclusively in existence ‘as at the date of registration’, the former commoner, or more likely the common owner, need only produce the deed, to show that the register is out-of-date and, on that matter, what is shown in the register can be left out of the reckoning. That may be the correct position, but it can be very frustrating for those who use the registers and expect them to present a comprehensive picture.

Part 1 seeks to ensure that the 1965 Act registers are brought up-to-date, to rectify the omitted amendments of the last 45 years, and kept that way. It does this, not generally by compelling applications to amend the register, but by inducing them. Where it has been brought into force, in the nine pioneer areas, it does this in several ways:

• by providing that rights of common which are capable of registration, but are not registered, are extinguished (at the end of an initial transitional period) (para.3 of Sch.3);
• by providing that various other things affecting what is shown in the registers (such as the creation or extinguishment of rights of common) can have effect only if done, in a prescribed form, by application for registration (ss.6–13) — in effect, by ensuring that these things can no longer be done ‘off register’;
• by abolishing certain mechanisms by which common law events can affect what is shown in the registers (i.e. the creation of rights of common by prescription, and the extinguishment of rights of common, ss.6 and 13);
• by re-enacting provision for the conclusiveness of a right of common entered in the register, upon its registration (s.18;
• by providing that statutory dispositions affecting what is shown in the registers (such as an exchange of land required to facilitate a road scheme across common land) do not operate at law so as to affect the status of the land, nor any rights exercisable over it, until the disposition is registered (r.44(2) of the Commons Registration (England) Regulations 2014, the 2014 Regulations, SI 2014/3038);
• an exception to the generality of the absence of compulsion, by placing a duty (generally on public authorities) to register the effect of a statutory disposition (s.14 given effect by para.8(2) of Sch.4 to the 2014 Regulations);
• by providing that other legislation which refers to common land or town or village greens, may be amended by secondary legislation (s.54), so that those references apply only to common land, or greens, which are registered under Part 1 of the 2006 Act — this last power is likely to be exercised only when Part 1 has been applied to the whole of England, the transitional period has expired, and reasonable opportunity has been afforded to apply to amend the register to deregister wrongly registered land under Schedule 2 or section 19.
• by ensuring that notice of applications or proposals under Part 1 affecting rights exercisable over registered land must be served on those parties who have declared their entitlement to exercise rights of common, and so updated the register to provide a direct connection between the registered right and the commoner entitled to it (para.1(a) of Sch.7 to the 2014 Regulations).

In the last case, such declarations have been facilitated by r.43 of the 2014 Regulations, and may be made so as to address the obvious drawback that the register does not directly identify the owner of a right of common attached to land, but only the land to which the right is attached. The owner or occupier of that land may declare to the registration authority his or her entitlement to exercise the right by virtue of that ownership or occupation, and if the authority is satisfied with the evidence provided, it will modify the registration to show details of the declaration. A declarant is guaranteed to be notified of applications and proposals affecting the land, whereas the difficulty in identifying other commoners from the register, and particular those entitled to dormant rights, means that no such obligation is owed to them.

By these means, the intention is that, subject to full implementation (yet to occur outside the nine pioneer local authority areas) and an initial transitional period, the registers should become, and subsequently remain, up-to-date. It is inevitable that, even then, mistakes will be made, and amendments for which applications should be made to amend the registers will not be made. But, generally, the law will assume, for the first time, that the register is correct, and that the consequences of an oversight will fall on the parties who made the mistake, rather than the world at large which, unsurprisingly, expects the register to be correct.

But I have already alluded to one significant respect in which the registers are bound to disappoint. By and large, the registers will not directly identify those who ‘own’ (technically, those who are entitled to exercise) rights of common, even though the registers will be conclusive about what rights exist. As we have seen, provision for declarations of entitlement to rights of common will help to address that omission. But the omission is itself often a matter for surprise and criticism, and merits some explanation. That will be the subject of a future blog.