Summary

The question of whether a right of common was a separate right or a split right did not turn on what was stated in the register.

Facts

The appellant farmer (D) appealed against a decision ((2011) EWHC 16 (Ch), (2011) 2 P) concerning the extent of his right to graze livestock on common land. D had applied to the commons registration authority to register rights for the grazing of livestock. The following provisional entries were made in his favour: (i) an entry concerning grazing on common land unit 162 (CL 162), with straying rights onto other units, including CL 161; (ii) an identical entry concerning CL 164; (iii) an entry concerning CL 161 for cattle and sheep to stray onto it from CL 162 and CL 164; (iv) an entry for a right to graze a specified number of bullocks/ponies or sheep on CL 161. The respondents objected to D's provisional entries. D's entries concerning CL 162 and CL 164 were confirmed save that the judge found that there was no right to stray. He confirmed D's entry concerning CL 161 but stated that it was split with the other units. D was therefore granted a right to graze the specified number of animals over CL 161 only in so far as he was not already grazing the same animals over the neighbouring units CL 162 and CL 164. D submitted that (1) the question of whether a right of common was a separate right or a split right turned entirely on what was stated in the register, and as his grazing right over CL 161 was not expressly qualified as a split right, it was therefore separate from his rights over CL 162 and CL 164; (2) alternatively, the judge should have held that his right of grazing over CL 161 was split with CL 164 only.

Held

(1) D's first submission was rejected. There was nothing in the Commons Registration Act 1965 or the Commons Registration (General) Regulations 1966 which expressly required an entry in the rights section of one register unit to refer to all other register units or areas over which the same right was exercisable. By contrast, reg.4(7) and Form 3 of the Regulations made it clear that where a right was exercisable only over part of the land in the register unit, that part of the land had to be identified. Whilst the Regulations required applications to identify all the land over which the right was claimed, that was for the administrative convenience of both the applicant and the registration authority. It avoided the need for a separate application for each register unit in respect of the same right of common. It enabled the registration authority, by reference to a single application form, to make the appropriate entry in the rights section of each relevant register unit, and, where any part of the area was not included in an existing register unit, it alerted the authority to the need to create a new register unit (see paras 58-61 of judgment). Section 15(3) of the Act strongly supported the conclusion that the specified number of animals in respect of which a grazing right had been registered was only an upper limit, and was not determinative of whether the right was a separate right or a split right. That position had not been changed by theCommons Act 2006 or the Commons Registration (England) Regulations 2008. The 2006 Act was not enacted to make the register even more conclusive than before, but rather the reverse, in recognition that its conclusiveness under the 1965 legislative scheme had resulted in unfairness and unintended alterations of former legal rights. Indeed,s.18(5) of the 2006 Act provided that the register was not conclusive regarding the absence of constraints on the exercise of a right of common if no such constraints were registered. The effect of s.18(5) was that the wording of the entry relating to CL 161 did not preclude a limitation that the registered grazing right was a split right and not a wholly separate right. That conclusion was not inconsistent with the requirement in s.3(4)(a) of the 2006 Act that "the nature of the right" had to be registered. The expression meant the type of common right being claimed, such as a common pasture/grazing right, pannage, estovers, turbary or piscary (paras 65-70). (2) The court disagreed with the judge's brief reasoning in support of his conclusion that the grazing right in respect of CL 161 was split with both CL 162 and CL 164. The rights in CL 162 had a quite different origin from D's venville rights. The appeal on that ground was therefore allowed and a declaration was made that D's rights to graze in CL 161 was split with CL 164 only (paras 76-82).

Appeal allowed in part