The Commons Registration Act 1965 was not there to create rights.

The Commons Registration Act 1965 required that all common rights had to be registered and grazing rights had to be quantified. When Mr. Dance registered cattle and sheep rights on 3 commons in Devon he knew that on two of the commons his rights were spread over the commons taken together and that they were not rights to graze the stated number on both commons.  However, he argued that the effect of the 1965 legislation was to give him the right to graze the same rights on each common independently. In effect this would double the number of his rights.  He lost before the High Court judge and appealed.

The Court of Appeal found (in November 2011) :

  1. An entry in the register of 100 sheep entitles the owner of that right to graze up to 100 sheep on the common concerned.  But registration does not give a definitive right to graze 100 sheep, it may be less.  
  2. That a registration without condition does not mean that previous conditions are erased by the registration under the 1965 Act.  (A condition may be that grazing rights can only be exercised for certain periods of the year by custom or ancient grant from the Lord as owner of the waste). The Commons Act 2006 confirms that constraints may exist even though not stated on the register.

 

So the Court of Appeal ruled:

  1. That if previous custom and practice was to graze the 100 sheep on the 2 commons together, then the right was a “split right”. The right could only be exercised once, in other words, the right could be split across the two commons, but the grazier could not graze 100 sheep on each.
  2. That the register does not need to mention that the right is a ‘split right’, nor is a reference to the other common or commons needed.
  3. In the case of the two commons which had been grazed together prior to 1965 often because they were part of the same original manor the rights may therefore be split and could only be exercised once.
  4. In the case of the third common which is land from a different manor the rights are separate and are not split.

Mr. Dance’s lawyer argued the 1965 Act states that registration of rights is conclusive of the rights registered following the resolution of objections. However the Court of Appeal says the register entries may be conclusive but they are not definitive as to number , because another section of the 1965 Act says that the numbers registered are treated as exercisable in relation to “no more” animals than the number registered. Had the Court agreed with Mr. Dance’s lawyer that the registrations on each common were conclusive in the sense that they were definitive as to number, Mr. Dance would have owned more rights than he had before 1965. His consolation was that his rights were only split over 2 commons, so he is able to continue to claim them separately on the 3rd common. 

This position did not change with the passing of the Commons Act 2006.   You still may need to look at past practice if your registered rights are challenged by others.  One wonders whether the drafters of the 1965 Act intended that result, or whether they thought they were bringing certainty.

Tim Cartmell, Cartmell Shepherd Solicitors