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Dartmoor Commons Decision

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Dartmoor Commons: Court of Appeal decision

This is by way of update to a news item posted on 24th August on a case SWLaw Solicitors took to the Court of Appeal. Please refer to the earlier post here. The Court of Appeal decision was handed down yesterday and is published here. The leading judgment was given by Lord Justice Etherton.

The appeal concerned the interpretation of ‘rights’ entries in the registers of common land kept by registration authorities. The Court of Appeal has ruled that the register entry cannot be relied on to determine the crucial question of whether the right is independent and exercisable over a single common land unit (‘CLU’) or whether it is a split right exercisable over two or more CLUs. In the present case: a right over Brent Moor CL161A is adjudged to be a right split with the Forest of Dartmoor CL164 even though the CL161A entry contains no reference to CL164: and a right over Dean Moor CL162 is adjudged to be an independent right although it is expressed to be split with the Forest of Dartmoor CL164. (The appeal was successful but not wholly so.)

In reaching this conclusion the Court of Appeal is rejecting the guidance issued by DEFRA, currently to be found in the Single Payment Scheme Handbook for 2011/2022 (p 35):

“How do I know if I have common land rights or how many rights I have?"

"Your grazing rights will usually be listed in the common land register drawn up under the Commons Registration Act 1965. These registers are held by the local authority that is responsible for the common. We recommend you check the common land register to ensure you know: the number of the entry or entries to which your rights are attached; the number and type of rights that are available to you; and whether your rights are split.”
A note to that text in the handbook says:
“Split rights – where a common land register allows a grazier the right to graze their animals across more than one common, usually qualified in the register as ‘over the whole of this register unit and CL XXX'”

This decision leaves landowners, commoners and their advisers in an area of uncertainty. In determining the nature and value of rights it is no longer sufficient to rely on the Registers of Common Land. It is now necessary to go behind the entry and go through a detailed and costly historical and legal analysis. The value of commons rights is often a very significant component of the value of a farm. The uncertainty is likely at best to add costs and at worst to detract from valuations.

It was acknowledged that Commons Registration under the 1965 Act was far from satisfactory. The Commons Act 2006 was intended to cure some of the ills but without re-opening all the issues settled by the registration process and the commons commissioners’ hearings. Nevertheless, the question of split rights remains an area of considerable doubt. The words in the ‘rights’ entries cannot be relied on and nor can the absence of words.