Court of Appeal upholds rejection of bid to register rights of common

A county council has successfully defended in the Court of Appeal its decision to refuse an application to register rights of common under the Commons Act 2006.

In Littlejohns & Anor v Devon County Council & Anor [2016] EWCA Civ 446 Martin and Sarah Littlejohns, who are husband and wife, appealed a High Court ruling in March last year that dismissed their claim for judicial review against a decision by Devon County Council, as commons registration authority, on 28 May 2014.

The Chancellor of the High Court, Sir Terence Etherton, said that at the heart of the appeal lay the question of law whether it was possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 January 1970 over land registered under the Commons Registration Act 1965 on or before 31 July 1970.

“That point of law is potentially of importance to many more people, particularly farmers, than the parties to the present case,” Sir Terence noted. “It is a point of law on which commentators, among whom is the Department for Environment, Food and Rural Affairs…., have been in disagreement.”

By an application dated 2 March 2010 pursuant to schedule 3 to the 2006 Act the Littlejohns had applied to Devon to amend the register of common land by the registration of the right to graze cattle and sheep on certain register units.

The right claimed was for 224 "livestock units" (a livestock unit being one cow or horse or five sheep). The application stated that the right to graze those animals was attached to Minehouse Farm and Estrayer Park which were owned by the Littlejohns.

The application also stated that the Littlejohns and their family had exercised cattle and sheep grazing on those commons from 1 January 1970 to 13 April 2001 continuously and referred to statutory declarations which accompanied the application.

The appellants claimed that they and Mr Littejohns' father had grazed sheep and cattle on common land adjacent to the farms for decades until April 2001.

Following the introduction of commons registration by the 1965 Act, on 27 May 1968 the National Farmers' Union sent to the county council, on behalf of Mr Littejohns' father, a formal notice of intention to register, as attached to the two farms, rights of common of pasture, piscary, turbary and estovers over Okehampton Common and Dartmoor Forest.

Devon acknowledged receipt of the notice. Under the relevant regulations this was required to be followed by a formal application. The county council’s records indicated, however, that no formal application was made and so the rights were never registered.

Mr Littlejohns stated in his statutory declaration that his father always assumed that the rights of common had been registered. It was only in 1984 that the Littlejohns were made aware by the chairman of the Okehampton Commoners' Association that the rights had never been registered.

Despite the non-registration of the rights of common, Mr Littlejohns' father and then the Littlejohns themselves continued to use the common land in the relevant register units for grazing until the outbreak of foot and mouth disease in 2001, when they were obliged to slaughter their herds.

Since April 2001 the common land has been subject to directions under the Stewardship/Wildlife Enhancement Scheme, an agri-environment scheme, under which payments are made to graziers to reduce or forgo grazing.

As commoners, the Littlejohns could elect either to graze their herds (subject to restrictions on areas designated as Sites of Special Scientific Interest) or to receive payments.

On 28 May 2014 the county council refused the Littlejohns' application. The reason was that, although they had provided evidence that rights of common had been exercised by the owners of the farms over the register units for more than 30 years, Devon had been advised by leading counsel that a right of common could not be created by prescription after 2 January 1970 over land that had been registered as common land under the 1965 Act.

In her ruling of 24 March 2015 Mrs Justice Lang rejected the Littlejohns’ legal challenge to the county’s decision.

By a majority of 2-1, the Court of Appeal has now upheld the High Court judge’s decision.

The Chancellor found for the appellants, while Lord Justice Tomlinson and Lord Justice Lewison ruled in favour of the council.

Permission to appeal to the Supreme Court was refused.

Stephen Whale of Landmark Chambers appeared for Devon County Council, both in the High Court and the Court of Appeal.