PannageMan

In the next few days or weeks, the Administrative Court of the High Court will hand down judgment in R (on the application of Andrews) v Secretary of State for the Environment, Food and Rural Affairs. The case relates to a claim for a bridleway near Chelworth on the Wiltshire border with Gloucestershire (the path crosses the corner between the A429 and the Oaksey Road here, and the path begins here, heading diagonally across the cropped field). But while the geographical context is novel, the parties, the facts and the law are almost identical to a case decided over twenty years ago.

R v Secretary of State for the Environment, ex parte Andrews, was a judicial review in 1993 of the Secretary of State’s decision to refuse to direct Suffolk County Council to make an order to add to the definitive map and statement a four foot wide footpath to Barton church (in Suffolk). John Andrews had applied to the council to record the path, and the council, following the Secretary of State’s guidance, had refused. The footpath was one which was set out in an inclosure award of 1805, the award being made by Inclosure Commissioners under a local act incorporating the General Inclosure Act 1801 (sometimes known as the Inclosure (Consolidation) Act).

An inclosure awarded highway is generally sufficient proof of the existence of a highway, provided there is evidence that the highway was actually set out: ‘once a highway, always a highway’. That is so even if the awarded highway has not been actually used for as long as anyone can remember. But the Secretary of State took the view that the 1801 Act, which was a clauses act intended to be incorporated in most local inclosure acts subsequently passed from 1801 until 1845 (meaning it contained general clauses likely to be required in most inclosure acts, but enacted in a single public act), did not contain any power to set out footpaths. This might seem odd, for the purpose of an inclosure is to divide up the common lands into regular parcels of land awarded to local commoners and farmers, and ancillary to the division of the common lands is the stopping up and diversion of the many rights of way which would have lain across the commons. While even in the early nineteenth century, footpaths could give rise to conflict between landowners and local people, they were, far more than today, seen as essential ways for people to go about their business in the community.

The 1801 Act contained two relevant provisions about highways. Section 8 provided that Commissioners could appoint ‘Carriage Roads and Highways’, and stop up existing ones, but that ‘such Roads and Highways shall be, and remain thirty Feet wide at the least’. Clearly, a four foot wide footpath could not be created under section 8. While counsel for Mr Andrews (who then, as now, was George Laurence QC) argued that section 8 contained an implied power to award public footpaths, it was to no avail.

What is peculiar in the original trial is that section 10 contained a power ‘to set out and appoint such private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds, and Land Marks’. There was a strong argument that the adjective ‘private’ in this context modified only the following noun ‘Roads’, and that the other items in the list were unqualified — indeed, that ‘Roads’ were necessarily qualified as private to distinguish them from public roads referred to in section 8, but that the other items did not need to be qualified, as they might be private, public, or indeed, such status might be irrelevant. But the report briefly notes that: ‘It was common ground that the adjective ‘private’ in section 10 governed not merely roads but also bridleways and footways.’ So the point was not argued before the court.

Yet section 11 went on to provide that all highways across the inclosed lands, not otherwise set out under the award, were to be stopped up. The judge recognised that it would be surprising if Parliament had intended that existing footpaths should be stopped up with no provision for their replacement, but decided that, since footpaths could not be set out under the award, the stopping up provision in section 11 could not apply to them — therefore they endured unaffected. Moreover, the local act could itself confer powers to set out footpaths if needs be (a few local inclosure acts do just that, which only muddies the waters further). But that finding was questionable: why would Commissioners wish to preserve existing footpaths across the inclosed lands, whatever the illogicality of their alignment, and whatever their inconvenience to the owners of the awarded parcels?

Finally, the court did not address (and presumably counsel did not argue) the objection to a court in 1993 deciding that the Commissioners had acted unlawfully in 1805, and in effect, quashing the provision made in the inclosure award nearly two centuries earlier. Whereas the claimant had brought a challenge against the decision of the Secretary of State, it seems that the Secretary of State had in turn successfully challenged the decision of the Commissioners, somewhat outside the three months conventionally allowed today for public law challenges.

Even so, it can be argued that if the Commissioners acted unlawfully, the award should not be recognised today. However, an award is a package: a carefully crafted compromise between the interests of the parish. Each commoner who lost rights of grazing on the common was compensated with an award of land or new rights elsewhere; the lord of the manor was compensated for the loss of his interest in the common. Landowners might surrender parts of the old inclosures so as to tidy up boundaries, in return for the award of new land elsewhere. And commoners, landowners and villagers could expect reasonable provision to be made for essential journeys across the newly inclosed lands, to replace the comprehensive network of paths and tracks which would have formerly lain across the commons. Take away any element of that compromise and it calls into question the package as a whole: if the award had itself excluded provision for a footpath to the church, would it have attracted the same substantial support which enabled the award to be confirmed? Who can say two hundred years later? No-one suggests that the entire award should be declared void, for that would have the most extraordinary consequences: but if not, is it right to disturb any element of it, so long after the event?

The High Court will now have another opportunity to decide whether the decision reached in 1993 was correct. It’s likely that the High Court will find itself bound by its earlier judgment. But a hint that the court might have decided otherwise if it were not so bound, and moreover, a leave to appeal, would pass the baton to the Court of Appeal.

There could be hundreds of claims for paths which may be revived if the original judgment is overturned. That is an aspect which will concern landowners and their representatives (although it is only the period 1801 to 1845 which imposes this special constraint on claims); but equally, that underscores the likelihood that Commissioners must have believed that they were acting lawfully in awarding footpaths (and bridleways), for the legacy of such ways is widespread.

Until the Commons Act 2006 came into force, a commoner — a person entitled to exercise a right of common — could probably lease or let the right to a third party. Indeed, the commoner could sever the right (that is, sever it from the land to which it was attached) and sell it as a right of common ‘in gross’. The freedom to trade in rights of common was confirmed by the judicial committee of the House of Lords in Bettison and Others v. Langton and Others.

The freedom was not entirely welcome: the potential to separate rights of common from the farm holdings to which they were attached, and which were in turn proximate to the common, was one of the drivers behind the 2006 Act. And so the Act prohibited severance (see s.9) from the date on which the relevant clause was published in the Bill: 28 June 2005.

The Act enabled the Secretary of State, and in Wales, now the Welsh Ministers, to prescribe temporary exceptions to the prohibition on severance. In England, these exceptions are contained in the Commons (Severance of Rights) (England) Order 2006 (which also had retrospective effect on being made). The exceptions (art.2(1)) allow for a temporary let of a right to graze animals for up to two years, renewable, and a let of the land to which a right of common is attached (for any period), without the rights (so that the rights would be retained by the owner of the land to which the rights are attached). The order remains in force today.

Strictly speaking, the order only enables the temporary letting of a right of common to graze animals where the letting is otherwise prohibited by the ban on severance in the 2006 Act. If the right could not have been temporarily let even before the 2006 Act, neither the Act, nor the order, enables it to be let now. This is a fairly obscure class, but it includes appendant rights (which were not within the scope of the House of Lords judgment in Bettison). Classifying rights of common into appendant and appurtenant rights is a pretty obscure exercise in itself, and it’s unlikely that this distinction will remain of relevance for much longer, if indeed it remains relevant now. And the order explicitly does not authorise the letting of rights other than for grazing animals. Moreover, certain unquantified rights (such as a right to collect firewood for use in a domestic hearth) were incapable of being let even before the prohibition on severance.

In Wales, the National Assembly for Wales (which at that time had responsibility for making secondary legislation, during a brief period when, in Wales at least, the legislature carefully scrutinised all secondary legislation) made the Commons (Severance of Rights) (Wales) Order 2007, which was similar — very similar — to the 2006 order, but provided for temporary lets of up to three years, renewable.

Until, that is, Saturday just past, 1 March, when the Commons (Severance of Rights) (Wales) Order 2014 revoked the 2007 order, and prescribed (art.3(1)) for lets of up to five years, still renewable. The change will doubtless accommodate farmers who are active commoners, but who have no, or insufficient, rights of their own and lease in the rights from another commoner. While there was nothing to stop this happening under the 2007 order, the short term nature of the lets would have been an impediment to signing up to longer term agri-environment agreements on the common (which last at least five years), since a commoner with a two year let would not be able to show sufficient long-term interest in the common. The change will also facilitate claims for direct payments on commons in Wales, since a five year let will ensure that the commoner has sufficient security to justify an investment in entitlements.

One interesting aspect of the new Welsh order is that any agreement for a temporary let must contain provision requiring that the owner of the land to which the right is attached is to notify the commons registration authority, the common owner, the commoners’ association (if there is one) and Natural Resources Wales (if the common is a SSSI) of the terms of the agreement (art.4). Note the assumption seems to be that the agreement will be made with the owner of the land to which the right is attached, rather than the occupier (who may have the use of the rights under a tenancy). Quite what the commons registration authority does with the information notified to it is not stated: the authority has no power to modify the register, and is under no obligation to maintain the information notified in any other place. One might also speculate on the precise powers to prescribe for notification, since the 2006 Act only refers (para.2 of Sch.) to leasing and letting in accordance with provision made by order, which suggests only a power to regulate the terms of the lease or let. The Act does confer a specific power to provide for ‘form and content’ of the let or lease, but notification is neither a matter of form nor content. Still, it’s not hard to see merit in at least providing for the possibility of the information being held in a collected form, provided at least one of the bodies notified does actually maintain that collection.

Alun Davies, the Welsh Government’s Minister for Natural Resources and Food, has announced plans to convert the commons registers in Wales to electronic form (here, or here if you’d like to read it in Welsh).

At present, the registers of common land (and those of town or village greens) are contained in bound paper registers held by 150 commons registration authorities in England, and 22 in Wales. The registers were compiled in response to applications made in the late 1960s, and contain typewritten forms and old ‘county series’ Ordnance Survey maps. Updating the registers in response to applications is slow and cumbersome: authorities no longer have the blank forms or typewriters to fill them out, while the maps are hopelessly out-of-date. Conversion to electronic form is likely to mean that the maps are held as part of a Geographical Information System, although this ought to contain safeguards to ensure that the data are protected against unauthorised alteration, and to ensure an audit trail of changes. The register forms will also be migrated to an electronic database, to allow more flexible handling and amendment.

Conversion of the registers will be challenging, particularly as regards the maps. These were frequently drawn up by council clerks with no cartographic skills, and it shows. Draughtsmanship frequently falls short of the then regulatory requirements (indeed, two Welsh authorities felt obliged to procure costly local Acts of Parliament to correct errors). Boundaries are often poorly drawn, perhaps with a thick pen, or failing to coincide with an obvious physical feature such as the moorland wall. Section 25 carries a strong implication that regulations will provide for consultation on draft converted maps, so that those potentially affected can see that the job has been done conscientiously. But it will be hard to address ambiguities in the paper maps with pragmatic resolutions, while avoiding redrawing boundaries for which the conversion process affords no authority, where it seems ‘obvious’ that a mistake was made.

It’s not clear, but the announcement contains an implication that the new electronic registers will be centrally co-ordinated or even managed, so that changes made by Welsh commons registration authorities are uploaded to a database held by the Welsh Government. That may be an ambitious agenda within the constraints imposed by section 25 of the Commons Act 2006, which only enables the existing registers to be converted to electronic form, but still on the basis of local authority registers. Perhaps new legislation is planned: even if not, the Welsh Government will need to make appropriate regulations under section 25.

No plans have yet been announced to implement electronic registers in England. Section 25 enables implementation on either a voluntary or mandatory basis (in other words, commons registration authorities can be enabled to convert to electronic form, or required to), but under current Government policy, either approach would require additional funding to local authorities to underwrite the costs of conversion, and that is unlikely in the present economic climate.

In the early days of commons and greens registration, under the Commons Registration Act 1965, disputed cases were determined by the Commons Commissioners. An appeal against a Commissioner’s decision lay to the High Court by way of case stated — and the case would be listed, not primarily by the names of the parties involved, but by the name of the disputed land. So some of the classic challenges from that time are known by the commons under dispute: for example Re Britford Common, Re Chewton Common, and Re Box Hill (a case which led to the cancellation of the registration of many commons, until eventually overturned a decade later by the House of Lords).

Challenges in court to the registration of greens on the basis of 20 years’ use are made under a different provision of the 1965 Act, and are brought against the commons registration authority which makes the decision, rather than a Commons Commissioner (whose office was abolished in 2010). So the cases are listed by the parties to the dispute, rather than the name of the green. Which is a pity, because the Supreme Court (and before it, the judicial committee of the House of Lords) has now opined on a series of green registration cases, where the greens (or claimed greens) are a roll-call of the evolution of case law on registration since the turn of the millennium:

• Sunningwell Glebe (R v Oxfordshire County Council and others, ex parte Sunningwell Parish Council)
• The Sports Arena, Washington (R v City of Sunderland ex parte Beresford)
• The Trap Grounds (Oxfordshire County Council v Oxford City Council and Robinson)
• Coatham Common (R (on the applicant of Lewis) v Redcar and Cleveland Borough Council)
• Curtis Fields (Mrs Gill Taylor (on behalf of the Society for the Protection of Markham and Little Francis) v Betterment Properties (Weymouth) Ltd)
• Clayton Fields (Adamson and others v Paddico (267) Ltd)

Six judgments in the highest court of the land, on such an obscure area of law as town or village greens, in the space of thirteen years, is quite remarkable: and there are two more on the way later this year. Each case washed the tide of law a little higher in favour of those who sought to register and protect land as greens. Until today. For the greens at Markham and Little Francis and at Clayton Fields are no more, and will be deregistered, and almost certainly developed (development was the motivation of the parties opposed to registration in both cases).

By way of explanation, it should first be said that section 14(b) of the 1965 Act provides that, once a registration authority has decided to register land as a town or village green on the basis of 20 years’ use, an application may be made to the High Court to ‘rectify’ the register, if “it appears to the court that no amendment or a different amendment ought to have been made…and…the court deems it just to rectify the register.” That is a very wide discretion afforded to the court to revisit the decision made by the registration authority, and to substitute its own decision for that of the authority. What is more, such a challenge can be brought at any time, unlike a claim for judicial review of a local authority’s decision, which must be brought promptly, and in any case, within three months of the decision (six weeks in planning cases). This provision in s.14 achieves greater prominence because, although greens are now registered under section 15 of the Commons Act 2006, a saving in the repeal of the relevant bits of the 1965 Act (see art.4(1)(b) of the Commons Act 2006 (Commencement No. 2, Transitional Provisions and Savings) (England) Order 2007 and art.3(6) of the Commons Act 2006 (Commencement No. 4 and Savings) (England) Order 2008) preserves the right to challenge such a registration under the old s.14, even (so far as registrations made before 2008) in the areas pioneering the full implementation of Part 1 of the 2006 Act.

So it is unsurprising that several owners of land registered (usually at any time from the 1990s onwards) as a green on the basis of 20 years’ use have sought to overturn the decision to register, often at some temporal remove. In the two cases before the Supreme Court, the developers had acquired the land from the owners at the time of registration, openly done at a hefty discount, hoping to secure deregistration under s.14, and thereby release the land for lucrative development (similar development plans had been the chief motivation for the local communities to seek registration in the first place). The question for the court was whether, if the court took the view that the original decision to register was wrong, was it ‘just’ to give effect to that view by ordering the deregistration of the land so long after it had been registered?

In Betterment, the application to register was made in 1994 and the land was registered in 2001: the s.14 challenge was effectively made in 2005; in Paddico, the application dated from 1994 and the decision was made in 1997: the challenge was brought in 2010. In both cases, unproductive steps had been taken at earlier dates to challenge the registrations.

In its judgment, Lady Hale for the court considered that there were three principles which were relevant to the question: “(1) with the principles applicable to public law claims; (2) with the principles applicable to private law claims where Parliament has provided a limitation period; and (3) with the principles applicable to private property law claims where Parliament has not provided a limitation period, as embodied in the equitable doctrine of laches.” ‘Laches’ here refers to the defence that a plaintiff has ‘slept on his rights’ and should have acted sooner to protect his interests.

On public law principles, the court struggled with whether it could ever be right to uphold a bad decision to register land as a green: if the decision was faulty, wasn’t it always desirable to quash it, even if there had been a delay in bringing a challenge, provided the court had discretion to do so (as it did here)? Parliament had not seen fit to impose a deadline on bringing a challenge under s.14 [although it’s far from clear that Parliament ever contemplated 20 years’ use applications to register greens following the initial wave of registrations in the late 1960s]. So the court turned to the doctrine of laches, which, it said, “generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice.” The court accepted that the developers had full knowledge of the registrations throughout, but observed that the developer was still substantially disadvantaged as a result. There was no acquiescence, in the sense that the developers were obliged to allow use of the land by the local inhabitants, and could hardly take steps to prevent it (short of a court challenge). And while there might be prejudice to the local community and others, they were benefiting from a green which they should never have had. Moreover, any prejudice would need to be proved rather than inferred simply because of the elapse of time [and there was precious little such evidence tendered in the courts below]. In Betterment, it would have been possible for someone placing reliance on the registration to find out about the unproductive initial steps made by the developer towards a challenge, and in Paddico, there had been an early application to rectify which was stayed owing to the evolving case law, there was no evidence of specific prejudice to the local inhabitants arising from the delay, other than the loss of the green, and the developer would suffer prejudice in not being able to rectify a wrongful registration. So in both cases, the developers prevailed, and the ‘greens’ will be deregistered.

Is it coincidence that the highest court has at last given judgments contrary to the interests of those furthering the registration of greens, just when legislation has been passed, in ss.14 to 17 of the Growth and Infrastructure Act 2013, which greatly repress those interests through statutory measures? Perhaps. But it’s hard not to read the judgment in these conjoined cases as exhibiting a sympathy for the developer, and an indifference to the interests of the local inhabitants, which is in striking contrast to the judgments of this court in earlier cases. If I were Newhaven Town Council, appearing before the Supreme Court in the spring in R (on the application of Newhaven Port & Properties Limited v East Sussex County Council and another and R (on the application of Newhaven Port & Properties Ltd v The Secretary of State for the Environment Food & Rural Affairs, to defend the registration of Newhaven West Beach as a town green, I wouldn’t be feeling too sanguine.

One interesting aside: in commenting on the role of the court in a s.14 challenge, Lady Hale said: “The administrative process of registration does not fulfil the requirement in article 6 [of the ECHR] for a ‘fair…hearing by…an impartial tribunal established by law’. The section 14 process of rectification fills that gap. That is one reason why it has to be a full rehearing rather than a review of the registration authority’s decision.” However, s.14 does not apply to registrations made in areas where Part 1 of the 2006 Act has been brought fully into force, and there is no equivalent provision except for judicial review, which does not allow for a full rehearing. So perhaps we will eventually hear from the Supreme Court again on the question, never entirely satisfactorily addressed, of whether the registration process for greens is compatible with ECHR.

Defra today announced an extension of the pioneer implementation of Part 1 of the Commons Act 2006 from October 2014 (brief details here). Unsurprisingly, this won’t be a full implementation in the parts of England where Part 1 has not already been brought into force. But the pioneer arrangements will be extended to Cumbria and North Yorkshire. And elsewhere, it will be possible to apply to deregister land or to correct some mistakes made by commons registration authorities.

Part 1 is about updating the registers of common land and town or village greens. These were drawn up by commons registration authorities under the Commons Registration Act 1965, on the basis of applications made by commoners and others between 1967 and 1970. It then took around 40 years for Commons Commissioners to work their way through all the disputed applications, until their eventual abolition on 1 December 2010. But the 1965 Act was intended to be an interim solution: good for getting land registered, but without much thought given to what should happen next. The 2006 Act provides for correcting some (but only some) of the mistakes made in drafting the 1965 Act registers, and for maintaining the registers into the future.

Part 1 was brought into force on 1 October 2008, but only in relation to seven pioneer commons registration authorities: the counties of Devon, Cornwall, Kent, Hertfordshire, Herefordshire, Lancashire, and the borough of Darwen with Blackburn. No extension has been made since then, although a favourable review was published on the pioneer implementation in 2010 (available via here). So the implementation in Cumbria and North Yorkshire will bring in two of the counties with the most agriculturally active commons, and with the existing pioneers embrace around 70% of the common land in England — albeit only nine of the 150 commons registration authorities. Still, at a time of acute constraints on public resources, any progress must be welcome.

More controversially, the intention is to bring into force throughout England the provisions in Part 1 which enable application to deregister land under paragraphs 6 to 9 of Schedule 2 to, and section 19 of, the 2006 Act. This has the obvious appeal that it will enable some people whose property (sometimes their home or garden) is wrongly registered to apply to rectify the register, in some cases after a wait of many years since the original error was perpetrated under the 1965 Act, and more frustratingly, a wait of seven years since Royal Assent to the 2006 Act. But it’s also controversial, because the parallel provisions in paragraphs 2 to 5 of Schedule 2, to register some land which was wrongly excluded from registration under the 1965 Act, will have to wait until a future extension of the Act, at a date which remains uncertain. It will not be possible to otherwise update the registers in these partial implementation areas, except in accordance with the limited provisions contained in the 1965 Act.

Giving effect to this announcement will not be straightforward. The Commons Registration (England) Regulations 2008 must be updated (they weigh in at a hefty 82 pages), because the 2008 Regulations provide for only the pioneer implementation timetable, whereas the extension of Part 1 will call for two concurrent timetables, and common sense suggests that the Regulations need to be future proofed against further commencement plans. Plus a commencement order. Some tricky transitional provisions will be required consequential on applications to deregister land outside the areas of full implementation, to enable amendments to registers still held under the 1965 Act. These will presumably be modelled on those contained in The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, which still provide, and will continue to provide, for new town and village greens to be added to the 1965 Act registers outside the pioneer areas. And the already extensive guidance will need to be updated: the guidance to commons registration authorities (available via here) weighs in at a comprehensive 217 pages. So, plenty to happen between now and the planned commencement date, even for this partial further implementation.