A long-running dispute, which could have wide-ranging implications for commoners and landowners not only on Dartmoor but across the whole of England and Wales, came before the Court of Appeal yesterday (23rd August). For Dartmoor’s many moorland farmers, commons rights – including the important and valuable right to graze stock over common land – is a significant component in the value of the farm. These rights can make all the difference to the viability of the farm. Those rights were put in doubt by a decision of the High Court which is now under appeal.
Commons rights could be complex in their historical origins and there could be uncertainty as to their extent. Such was the confusion that, following a Royal Commission Report (Command 462, 1957) published in 1958, legislation was brought forward to bring some certainty to the extent of common land and to the rights exercisable over it. This was to be achieved by a process of registration under the Commons Registration Act 1965 . The scheme was that county councils as registration authorities would compile registers of all common land and of all rights exercisable over the commons. Applications for registration had to be made within a limited period of time failing which the rights were lost. Applications to register commons rights were initially recorded as provisional but became final if no objections were made. In the case of disputed rights, they were considered by the Commons Commissioners who had to decide whether to refuse the rights, confirm them or modify them. It was a long process over many years such that the Commons Commissioners were abolished, as recently as December 2010, all provisional entries having been determined – though it was argued that they could still have an important role to play ( see eg Open Spaces Society). Registration under the Commons Registration Act was to bring certainty to a confused situation and, by s 10, the Act provided that registration : “ shall be conclusive evidence of the matters registered, as at the date of registration”.
Despite these procedures, and the careful work of the Commons Commissioners, there were undoubtedly many errors and anomalies in the resulting registrations. This was recognised when the Commons Bill was introduced in the House of Lords in July 2005: the Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Bach) said “Clause 18 provides for corrections to be made to the registers in certain circumstances. I should add that the Bill does not generally enable corrections to the number of rights registered under the 1965 Act. We recognise that many rights registered in the 1960s were excessive or inflated and, sometimes, out of all proportion to the capacity of the common. But we believe, as most stakeholders do, that we must move on and that reopening these registrations 35 years later would not be helpful in achieving better management of our commons.” – Hansard, 20th July 2005 Column 1487 et seq (Clause 18 of the Bill became Section 19 of the Act.)
The Bill became the Commons Land Act 2006 which is being brought into effect in stages. The Act is in force in a number of ‘pilot areas’ of which Devon is one. Theexplanatory notes to the Act give some general historical background though, of course, Dartmoor has its own peculiarities as the Forest of Dartmoor (formerly all part of Lydford parish) was a Royal Chase. The 2006 Act preserves the registers and reasserts their conclusiveness (s 18).
The case before the Court of Appeal concerns a dispute over the interpretation of registered rights. Many rights were registered inaccurately. In the case now under appeal, a right over the Forest of Dartmoor has been wrongly associated with a right over an adjacent common and treated as a split right exercisable over the two commons – they are plainly separate rights with quite distinct historical and legal origins. Another right has been registered as a right exercisable over a single common where historical analysis leads to the conclusion that it should perhaps have been treated as a right exercisable over the two commons – a ‘split’ or ‘shared’ right. The decision the Court of Appeal has to make is, starkly, between : (1) interpreting the entries as they appear on the face of the register even though those entries are incorrect; and (2) undertaking an exercise in going behind the wording of the entries and looking at some extraneous material as an aid to interpretation. The first option gives the certainty that the Act was seeking to establish: the second option opens up the possibility of many rights being “re-interpreted” after many years.
The case involved detailed argument as to what information the registers could and should contain, what information in the registers was to be regarded as conclusive, whether it was possible to pray in aid other material in order to understand the entries … etc. In short, the position contended for by Respondent to the Appeal would leave open the possibility of limitations and restrictions on rights which would not be discernible from the register entries and would put an impossible burden on those seeking to understand the registers.
If the registers cannot be relied on without further enquiry, what is the nature and extent of the enquiry that should be undertaken by any interested party including, for example, a prospective purchaser of common land or of land with commons rights attached to it? What advice should professional advisers – eg solicitors, valuers – give? Any doubt will impact immediately on valuation. A purchaser will not pay full price for rights that may be open to doubt. This could have a catastrophic effect for some farmers. DEFRA and RPA would also have to review their current, long-established practice in interpreting the register entries when dealing with entitlements to environmental payments.
We await the decision of Lords Justices Hughes, Etherton and Tomlinson with great interest. Those with any interest in common land will, mostly, be hoping that the judgment will bring some certainty to the situation. Watch this space____!