Application Decision Hearing held on 20 August 2014 by Michael R Lowe BSc (Hons) an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs Decision date: 14 November 2014 Application Ref: COM 530 Land in the Parish of Zennor, including Bosigran, Halldrine, Carn Veslan, Carn Moyle, Porthmeor, Treen and Carnelloe Cliffs, County of Cornwall Register Unit No. CL 703 (part) Registration Authority: Cornwall Council The application, dated 25 February 2013, is made under paragraph 4(6) of schedule 2 of the Commons Act 2006 (the 2006 Act). The application is made by David Coles, for Save Penwith Moors. The application is to register waste land of a manor as common land in the register of common land. Decision 1. The application is granted in part. The land coloured red on the attached plans shall be added to the register of common land. The land coloured blue, which was part of the application, shall not be added to the register. Preliminary matters 2. I held a hearing at the Centre of Pendeen on 20 August 2014. I carried out a site visit on 20 August 2014 accompanied by those parties that so requested with respect to their interests in the land concerned. The application land 3. The application land comprises a stretch of coastal cliffs and the coastal slope over a distance of about 4km. The land is within an Area of Outstanding Natural Beauty and is almost entirely designated as ‘access land’ under the Countryside and Rights of Way Act 2000. The National Trust owns a substantial part of the land and they have no objection to their land being registered as waste land of a manor. There are three objections to the application. Mr JH Mann and Mr E Richardson object with respect to parcels of land at Carnelloe Cliffs, Mr Shaun Jelbert objects with respect to Veor Cottage and the access track thereto and the Robert Berryman Trust object to parcels of land at Porthmeor Cliffs. Main issues 4. Whether the application land is waste land of a manor and satisfies the statutory requirements for an application in accordance with the provisions of paragraph 4(2) and 4(5) of Schedule 2 to the 2006 Act. Whether before 1 October 2008: http://www.planningportal.gov.uk/planning-inspectorate Application Decision COM 530 (a) the land had been provisionally registered as common land under section 4 of the Commons Registration Act 1965; (b) an objection was made in relation to the provisional registration; and; (c) the provisional registration was cancelled in the circumstances specified in sub-paragraphs (5). The circumstances set out in sub-paragraph (5) are:- the person on whose application the provisional registration was made requested or agreed to its cancellation (whether before or after its referral to a Commons Commissioner). Reasons The application 5. The Council state that the application land was the subject of provisional registration as common land under the Commons Registration Act 1965. The provisional application was made by The West Cornwall Footpaths Preservation Society dated 22 December 1969 (number 1891). Some 9 objections were made to the provisional registration and part of the application was cancelled by agreement with the applicant. Consequently some parts of registration unit CL 703 remain on the common land register and those parts that were cancelled are the subject of the current application under paragraph 4(6) of schedule 2 of the 2006 Act. 6. It is not disputed, and I am satisfied, that the application satisfies the statutory requirements for an application in accordance with the provisions of paragraphs 4(2) and 4(5) of Schedule 2 to the 2006 Act. Whether the land at issue is waste land of a manor 7. Waste land of a manor was defined in the case of A-G v Hanmer (1858) 27 LJ Ch 837 at 840: The true meaning of “wastes”, or “waste lands”, or “waste grounds of the manor”, is the open, uncultivated and unoccupied lands parcel of the manor, or open lands parcel of the manor other than the demesne lands of the manor. 8. In the case of Hampshire County Council and others v Milburn (1990) the House of Lords decided that ‘waste land of a manor’ means waste land of manorial origin and accordingly refers to both waste land which belongs to a manor and waste land which formerly belonged to a manor (the Hazeley Heath case). As set out in Defra guidance1, this decision overruled the decision of the Court of Appeal in the case of Box Parish Council v Lacey (1980) in which it was held that ‘waste land of the manor’ must still be in the ownership of the lord of the manor. The 2006 Act enables a fresh application for the registration of ‘waste land of the manor’ when the provisional registration was withdrawn or rejected on the basis of the Box Hill case or otherwise. 9. In the Hazeley Heath case Lord Templeman explained: The manorial system which the Normans partly inherited and partly established displayed a variety of local laws and customs but in general there were three categories of land comprised in a manor. The demesne land belonged to the lord of the manor. 1 Department for Environment, Food and Rural Affairs, Part 1 of the Commons Act 2006, Guidance to commons registration authorities and the Planning Inspectorate for the pioneer implementation (version 1.46 January 2014) http://www.planningportal.gov.uk/planning-inspectorate 2 Application Decision COM 530 The copyhold land was divided between the tenants of the lord of the manor. The remainder of the land consisted of uncultivated land referred to as the waste of the manor. The waste land was the natural source of grazing fodder and fuel for all the inhabitants of the manor. The waste land belonged to the lord of the manor subject to the rights of the tenants to enjoy in common the fruits or some of the fruits of the soil in the manner of a ‘profit à prendre’. Manorial land or formerly manorial land 10. The vast majority of land in England is formerly of a manor, notable exceptions being Crown land and boroughs¹. The applicant has set out some detailed research into the history of the locality and the Council have accepted that the land is of manorial origin. No objections have been raised on this point. Briefly, the Penheleg manuscript of the 16C and 19C local histories and other documents in the County Records Office all indicate that within the locality were the manors of Hornwell and Binnerton and later the manors of Boswednack, Treen and Trewey. On the balance of probabilities, I am satisfied that the land concerned is of manorial origin. Open, uncultivated and unoccupied 11. In Gadsden on Commons and Greens2 it is asserted that ‘open’ in the context of waste land of a manor means unenclosed. However, I consider that a distinction should be made between common land and waste that has been divided-up into allotments under an inclosure process and where, for example, such land has become enclosed as a result of the surrounding land being fenced (or walled, etc.) against the common or waste, or the land being fenced against a highway. 12. It was submitted by the applicant that I should have regard to the description of open country used for the purposes of access land under the Countryside and Rights of Way Act 2000. In my view, whilst it may often be the case that ‘open country’ as defined by the 2000 Act may also be ‘open’ for the purposes of ‘waste land of a manor’, it is not necessarily so. The definitions and descriptions used for the purposes of the 2000 Act are, in my view, only applicable to that legislation. Land at Porthmeor Cliffs 13. On behalf of the Robert Berryman Trust it was submitted that an indenture dated 1 November 1880 for the ‘division of Porthmeor cliff and common moor’ enclosed the land. It is clear from the 1st edition Ordnance Survey map of 1880 and 2nd edition map of 1907 that, between these dates, the land at Porthmeor Cliff was divided into 5 parcels, as described in the indenture. So far as is relevant to this appeal, the parcels are divided by Cornish hedges, in this case a stone faced earth hedge bank. The indenture indicates that for parcels 1, 2 & 3 the division of the lands extends to the foreshore, although the actual enclosure boundaries shown on the Ordnance Survey map of 1907, and present to this day, demonstrate that parcel 2 was hedged against the coast. 14. The details of the indenture are difficult to read and it is not clear to me whether this document is an agreement for the enclosure of land over which the grazing was by right of common or by rights in common. Nonetheless, I have no doubt that where the land was enclosed and divided by the Cornish 2 Cousins, EF & Honey, R, (2012) Gadsden on Commons and Greens, 2nd edition, Sweet & Maxwell, London http://www.planningportal.gov.uk/planning-inspectorate 3 Application Decision COM 530 hedges the effect was clearly to convert the land from open land to enclosed land. A Cornish hedge is a work of substantial labour and a good indication of occupation of land. It follows that the enclosed lands are not waste land of the manor. The small strip of land between parcel 2 and the foreshore is not enclosed and there is no indication that this strip of land is other than open, uncultivated and unoccupied.