High Court rejects challenge to council decision not to determine application to register 80 acres of common land

Mr Justice Kimblin heard the late Maureen Comber had wanted to register 80 acres of Broxhead Common with Hampshire County Council under Part 1 of the Commons Registration Act 1965.

Hampshire declined to determine Mrs Comber's application for want of jurisdiction.

She challenged that decision, both substantively and procedurally.

Kimblin J said this raised questions about how the statutory machinery for commons registration works in areas which do not operate the scheme in the Commons Act 2006 as what are known as ‘pioneer' or ‘2014’ authorities, with Hampshire falling under neither designation.

Kimblin J asked if Hampshire did have jurisdiction, was the 80 acres site - owned by interested party Anthony Whitfield - ‘waste land of the manor’?

A third dispute arose because Mrs Comber had contended that Hampshire acted unfairly in not giving her an opportunity to respond to new material and said the council showed an appearance of bias.

The 80 acres site was recognised as part of Broxhead Common in a 1957 survey and various subsequent proceedings had seen a settlement reached between Hampshire and Mr Whitfield as to its use.

Mrs Comber lost several cases over common registration and in 2024 instructed a new legal team to apply to register the 80 acres under ss. 1 to 3 of the 1965 Act.

Hampshire responded that there was no lawful basis for the application, noting it was among councils for which significant parts of the 2006 Act are not operational including lacking the ability to apply to add previously unregistered common land and manorial waste land to the register.

It said this meant such applications cannot be processed in Hampshire and all the council could do was correct historic mistakes.

Kimblin J said on the jurisdiction issue that Hampshire had been correct to decide it had no power to determine Mrs Comber’s claim.

“This court should not read words into the legislation to fill the so-called legislative gap…this court may not and will not intervene in a matter which is outside its proper role,” the judge said.

He said on the dispute as to the land’s status that the relevant time to decide this had been at the time of registration. If it was apparent to the Chief Commons Commissioner that land was ‘waste land of the manor’, within the long-established meaning given in the 1858 case AG v Hanmer, then registration would follow accordingly.

“In respect of the 80 acres, nobody made that case and it is now too late to do so,” he said.

On the procedural issue, Kimblin J said Hampshire had already heard from both Mrs Comber and Mr Whitfield, and felt there was nothing to be gained from a further round of submissions.

“In my judgment, the council ought to have given Mrs Comber an opportunity to respond to the interested party's submissions,” the judge said.

This was because Mr Whitfield introduce new points to those addressed by the application and the interaction between the definition of registrable land under s. 22(1) of the 1965 Act and the enforcement provisions in the Law of Property Act 1925 “was not straightforward”.

Hampshire admitted Mr Whitfield’s new material provided an additional reason for it to reject the application.

“In this circumstance it was unfair not to go back to the applicant to ask for comment on a point which seemed to the council to have a role to play in its decision,” Kimblin J said.

“This is not simply a matter of form so that the decision appears to be fair, though that is important. Rather, it is a still more basic and substantial requirement for the decision-maker to maintain an open mind and to always appreciate that even the apparently unanswerable point sometimes has an answer.”

Mrs Comber had accused Hampshire of bias because it is a tenant of some 100 acres of the Broxhead Common, owned by Mr Whitfield, and for which an annual rent of £23 per acre is paid.

Kimblin J said: ”I find that the council has performed its functions consistently in a responsible and even-handed manner. There is no apparent bias. The long history of the contest in respect of the 80 acres necessarily involved the council throughout.

“It could not avoid playing the roles which the law and the parties required it to play. I see nothing in the facts to indicate that the council wished to achieve a result which was contrary to that which Mrs Comber sought.

“Rather, the council was applying a difficult statutory scheme to a long-running issue and undertaking its proper role as a public body which was charged with these tasks.”

Kimblin J concluded that Hampshire’s failure to ask the late Mrs Comber for a response to Mr Whitfield’s new representations “was a misstep, but not such as would, in context, give rise to an appearance of bias.

“Rather, the council had reached the correct conclusion on jurisdiction and so was minded to bring matters to a close.”

Mark Smulian