PannageMan

Over 100 hectares of Cornish maritime heathland has been registered as common land in Penwith (west Cornwall) following an application from Save Penwith Moors, reports The Cornishman.

The application was made by the campaign group under Schedule 2 to the Commons Act 2006, which has so far been implemented only in Cornwall and six other pioneer areas in England. The application was made under paragraph 4, which offers a second chance for registration of a common where the registration was cancelled many years ago under the Commons Registration Act 1965 in circumstances which today look less than satisfactory. The application was referred by Cornwall County Council to the Planning Inspectorate for determination.

This is the seventh such application to succeed in Cornwall, and the only area where such applications have been granted in any number (although a number of applications are now being made in Lancashire); it’s also the largest such application to be granted to date. An application for registration of 184 hectares in adjacent parishes remains pending.

The application land, which comprises Carnyorth, Botallack and Truthwall Commons, is classic Penwith moorland heath, with notable prehistoric remains. The registration will confer additional protection from development, and ensure that public access is maintained in perpetuity.

     Holed stone on Truthwall Common. Photo: copyright Rod Allday and licensed for reuse under this Creative Commons Licence.

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)

Judgment handed down today in Bickford-Smith v Secretary of State for EFRA on commoning in the New Forest. The application for leave to bring a judicial review was made by Imogen Bickford-Smith (the claimant), a New Forest farmer and commoner, who challenged the decision of the Rural Payments Agency (RPA) to refuse subsidies on her commoning activities under the Single Payment Scheme (SPS).

The arrangements for the SPS in the New Forest are unique. European regulations required land farmed in common to be allocated, for the purposes of SPS, on the basis of [actual] use or right of use. Unlike the rest of England and Wales, where there are registers of common land and of the rights exercisable over it, the New Forest has only registers of holdings which have rights attached to them. There are no records of the number of rights held by each holding, although in theory, these are limited by the ancient principles of levancy and couchancy (in practice, those principles have not been applied in modern times). But New Forest commoners must pay marking fees to the Verderers for each animal turned out, under local byelaws.

In 2005, when farmers established entitlements under the SPS, commoners generally were granted entitlements proportionate to their individual share of the total number of rights registered on a common (that proportion was then used to calculate each commoner’s notional share of the common). That wasn’t possible for the New Forest, so instead, New Forest commoners were granted entitlements on the basis of the number of livestock for which they had paid marking fees in 2004, and therefore a measure (at least in theory) of the number of animals turned out in that year. So, whereas commoners generally were appraised on the basis of right of use, New Forest commoners were appraised on the basis of actual use.

But the claimant did not turn out any livestock in 2004, and did not pay any marking fees. So, while the claimant had entitlements in respect of her own holding, she did not have any with regard to the New Forest commons. The claimant could have acquired new entitlements on the market, paid marking fees for the relevant year, and claimed against those. But she instead claimed against the common in 2012, and, lacking entitlements, when that was predictably refused, sought a judicial review of the Secretary of State (responsible for the RPA), on the basis that the RPA should have given her new entitlements in 2012.

The claimant argued that the RPA had allocated entitlements in 2005 on the basis of actual use, and should continue to adjust entitlements and make payments on the same basis. Instead, the claimant said, the RPA had permitted commoners to cease grazing after 2005 but without any mechanism to withhold subsequent SPS payments, so that actual use was no longer a requirement. The claimant argued that the RPA should have recovered entitlements from commoners who were no longer turning out animals, thus enabling the entitlements to be recycled to those who, in effect, took their place.

However, the judge found that the methodology used to allocate common land at the outset of the SPS was necessarily distinct from the continuing administration. Indeed, the SPS was a decoupled subsidy (meaning that payments were not to be related to levels or factors of production), so that, had the RPA approached the scheme in the New Forest as the claimant sought, it might have been both unlawful and contrary to World Trade Organisation rules to which the EU is a party.

The court therefore refused leave (although since the application was heard in a rolled-up hearing, the claim was fully argued in a full day at the Royal Courts of Justice). Nevertheless, the second part of the judgment provides a very thorough if technical walk-through the European instruments which established the SPS in England.

Declaration of interest: most of the posts in this blog will reflect a personal interest, but in this one, I should say that I was directly involved in the course of my work. This post is however intended to be a disinterested report of the case.

Just a week remaining to respond to the consultation to establish a commons council for Brendon Common on Exmoor: it closes on 3 November 2013.

Why should anyone be interested in this? Well, this is the first ever commons council likely to be established under Part 2 of the Commons Act 2006: it’s taken seven years to get this far (I can hold my hand up to having had some part to play in that timetable). Moreover, the Act (s.27) provides that the council may be established only if, in response to the consultation, the Secretary of State: “is satisfied that there is substantial support for the making of the order.” He must have particular regard to representations from the landowner and commoners (particularly active commoners), so PannageMan hopes that they are sharpening their pens (or more likely hitting their keyboards).

The trickiest part of the order is the provision for elections and appointments to the council. Article 4 of the draft order (regrettably mounted on the website in Word rather than pdf: Government should not expect its citizens to subscribe to costly proprietary software) provides that the council is to consist of between five and seven members, three elected by the active commoners, one by inactive commoners (in both cases, from among themselves, so no third parties allowed), one appointed by the owner, and up to two co-opted. The difficulty which can arise in elections among a small number of commoners (we’re not told in the consultation how many are active, but previous research suggests around seven active commoners, and around thirty recognised commoners) is how to address the situation where each elector tends to vote for him or herself: the answer is found in paragraph 14(d) of Schedule 1 to the draft order, which provides than in the event of any equality of votes, each vote is weighted according to the voter’s share of the rights on the common. That means that, if indeed each active commoner votes for him or herself, those three with the largest number of rights will be elected. But the smaller active graziers can easily avoid that outcome by voting collectively for one or possibly two candidates. The politics, even at this level, could be quite interesting. Acting together, the three active commoners elected to the council will always have a majority, since any co-opted members have no vote on the council (paragraph 1 of Schedule 2 to the draft order). However, a special majority is required for certain purposes (such as making rules, a form of byelaw), and this must be two-thirds of those present with voting rights. Since there can be only a maximum of five council members present with voting rights, this moves the majority required from three (a simple majority) to three and one third: presumably, this means four, although the order does not clarify the point.

A persistent attempt by villagers in Ireby, Lancashire, to overturn the registration of ownership of ‘manorial waste’ by a local resident and claimed lord of the manor, has failed in the Court of Appeal. Although the landowners Peter Burton and Susan Bamford had long since lost their claim to the lordship of the manor of Ireby, the court upheld the decisions of the Adjudicator to the Land Registry, and of the High Court, that the Burtons’ successful registration of title to the manorial waste should not be disturbed, even though it was founded solely in the original and subsequently cancelled claim to the lordship of the manor. The Burtons therefore retain ownership both of Ireby Fell and of unspecified manorial waste in the village.

The story attracted a detailed report in the Daily Mail. The court case is reported from the High Court and on appeal to the Court of Appeal, as well as a High Court hearing on costs arising from the adjudicator’s decision.

The Land Registry originally took the view that an application to rectify the register, by cancelling an existing registration of title, could be made only by someone with a better claim to the title, a position founded in common law, and upheld by the High Court in Wells v Pilling Parish Council where the contest was said to be a matter of private law between the parties (this notwithstanding that provision was now made in statute for application to rectify without any express mention of the old common law restrictions, that the council was presumably acting in furtherance of the interests of the local community, and that the council hadn’t been notified of Mr Wells’ original application to register a possessory title to the foreshore — a failing all too typical of Land Registry practice in this area). The High Court then effectively overturned that approach in Mann v Dingley, holding that the court in Wells had unnecessarily narrowed down the question to one of private or public law, and was followed in Paton v Todd. So the way lay open for a (diminishing) number of villagers to challenge the Burtons’ claim to Ireby Fell through three successive tribunals, notwithstanding that the villagers did not claim to have a better title (if one discounts a rather desperate assignment of purported title from the Grand Prior of England of the Sovereign Military Hospitaller Order of St John of Jerusalem of Rhodes and Malta), although they presented evidence as to who else might. Crucially, however, no other party joined in the action to lay claim to the title, and no-one objected to the Burtons’ original application to register the lordship of the manor, and hence title to the manorial waste. By the time of the hearings, the Burtons had established a track record of managing the common, and the courts concluded that, notwithstanding their lack of historic title to the land (following the revocation of the manorial title), it was better that the land should remain vested in the Burtons, than that it should once again become apparently ownerless (seeing as no-one else was motivated to lay claim to it).