North Yorkshire County Council
Business and Environmental Services
Planning and Regulatory Functions Sub-Committee
24 February 2021
Application to amend the register to record an historic event Commons Act 2006, Part 1 – Schedule 3 The Commons Registration (England) Regulations 2014 Schedule 4 Paragraph 19
Application Reference Number CA14 047
Right entry 17 exercisable over West Scrafton Moor (CL 105)
Report of the Corporate Director - Business and Environmental Services
1.0 Purpose of Report
1.1 To report on an application (“the Application”) seeking to amend the register of Common Land to reflect the severance of rights registered from the land to which they are currently recorded as being attached and identified on the related supplemental map edged but not coloured red Appendix 1.
1.2 Severance occurred historically where rights previously recorded as attached to an area of land were split from that land by means of a suitable legal instrument (e.g. a conveyance) and/or treated independently of that land and as a separate asset.
2.0 Background
2.1 Under the provisions of the Commons Act 2006 (“the Act”) the County Council is a Commons Regulation Authority (“CRA”) and so responsible for maintaining the Registers of Common Land and Town and Village Greens for North Yorkshire.
2.2 Part 1 of the Commons Act 2006 took full effect in North Yorkshire from 15 December 2014 and at the same time it became effective in Cumbria through the Commons Registration (England) Regulations 2014.
2.3 Schedule 3, paragraph 2(2)(b) and 2(3)(c) of the Act in part set out that: -
(2)The following are qualifying events for the purposes of this Schedule— (b) any relevant disposition in relation to a right of common registered under the 1965 Act, or any extinguishment of such a right, where occurring at any time— (i) after the date of the registration of the right under that Act; and (ii) before the commencement of this paragraph;
(3) In sub-paragraph (2)(b) “relevant disposition” means— (c) in the case of a right of common attached to land, the apportionment or severance of the right And Schedule 4 paragraph 19 of the Commons Registration (England) Regulations 2014 (“The Regulations”) sets out that:
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19.(1) An application to amend a register in consequence of the severance of a right of common from land to which it was attached, which is a qualifying event by virtue of paragraph 2(2)(b) of Schedule 3 to the 2006 Act, may only be made by— (a) the person to whom the right of common was transferred upon being severed; (b) the owner of the right of common at the date of the application; or (c) the owner of land to which the right of common is registered as being attached. (2) The application must include— (a) evidence of the applicant’s capacity to make the application (as described in sub-paragraph (1)); (b) the numbers of— (i) the register unit; and (ii) the entry in the rights section of that register unit, which are to be amended; and (c) a description of the land to which the right of common was attached, and evidence of the ownership of that land at the time of the severance of the right of common. (3) The application must include or be accompanied by— (a) the written instrument (if any) which the applicant claims has effected the severance of the right of common; and (b) if there is no such instrument, or if that instrument does not express an unambiguous common intention by the parties to it that the right of common should be severed— (i) other documentary evidence, contemporaneous to the time at which the applicant claims that the right of common was severed, of a common intention by the transferor and transferee of the right of common that it was to be severed; or (ii) evidence that the right of common has subsequently been treated as severed.
2.4 A CRA needs to be satisfied on the balance of probabilities that a severance occurred where an application claims that to be the case.
3.0 Application
3.1 The application was submitted by Mr Charles William Utley and Kevin George Utley (“the Applicants”), through their solicitor Stuart Hall of Hall and Birtles Limited. The Application was dated the 9 November 2018 and received by the County Council on 14 November 2018. The Application was accepted as being duly made on 8 January 2019.
3.2 A copy of the Application including supporting documentation comprises Appendix 2.
3.3 Application Land Timeline: (according to documentation held by the CRA and submitted by the applicants)
o 29 March 1968: Thomas Handley applied to register 180 grazing rights attached to Culverham Farm and this was provisionally entered into the register as right entry 5. See register pages at the end of Appendix 2.
o 1 October 1970: Being undisputed the rights were automatically declared final without being reviewed by the Commons Commissioner. See Entry 9 of the register pages at the end of Appendix 2.
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o 9 January 1976: Thomas Handley sells a property and small part of Culverham Farm to Angela Hammond. No rights were mentioned as part of the conveyance Appendix 2.
o 25 October 1979: Thomas Handley sells two separate parts of Culverham Farm, to Charles Simpson Utley in two separate conveyances. 56 and 43 sheepgaits were also conveyed at this time. As a result of a separate application submitted to the CRA we hold a copy of a further conveyance showing that Mr Handley also sold another part of Culverham Farm and 18 sheepgaits to T.W. Dent & Sons in a separate conveyance on the same date. The amount of sheepgaits sold were disproportionate to the amount of land conveyed in each case Appendix 3.
o 13 April 1987: Thomas Handley sells a further part of Culverham Farm to Charles Simpson Utley in a further conveyance. This conveyance refers to 63 sheepgaits, which again is disproportionate to the amount of land sold. Memorandums at the end of this conveyance shows that between 1990 and 1994 Charles Simpson Utley went on to sell three parcels of land part of Culverham Farm to three separate people. No rights were mentioned in these later sales Appendix 3.
o 24 November 1997: Charles Simpson Utley gifts his estate along with a total of 328 sheepgaits to Charles William Utley and Kevin George Utley (the applicants) Appendix 4.
4.0 Representations
4.1 In accordance with Regulation 21 of the Regulations, the CRA publicised the application by issuing a notice on the County Council’s website and by serving notices on all relevant parties. The notices were posted on 21 January 2019, in accordance with Regulation 21(5)(a) of the Regulations.
4.2 There was one representation received in response to the notice from The Open Spaces Society who objected to the application Appendix 5.
4.3 The Open Spaces Society objected on the grounds that insufficient evidence was submitted with the application to show that the rights have been severed.
4.4 In response to the Open Spaces Society’s objection the Applicants’ representative provided further documentation regarding the transfer of the rights and their subsequent treatment Appendix 6. They state that the conveyance between Thomas Handley and Angela Hammond in 1976 did not transfer any common rights. They argue further that this must have been the intention of the conveyance as Mr Handley went on to transfer his common rights in later conveyances to the applicants’ father. The letter further states that the applicants’ father then exercised these rights and now the applicants do. See Appendix 3 for the three conveyances submitted.
4.5 The Open Spaces Society continued with their objections arguing that under Section 62 of the Law of Property Act 1925 there is a presumption that when land is conveyed all rights and easements are included in that sale. The Open Spaces Society also objected to the application seeking to record a severance in relation to the sale of what it considered a relatively insignificant part of the land to which the rights are recorded as being attached Appendix 7.
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4.6 The Applicant responded by stating that they recognised that when determining an application, it is difficult not to apply current legislation to events that happened in the past carried out under different legislation but restated that at the time of the historic event, grazing rights were treated as a form of land and as such they would have been specifically mentioned in a conveyance if they were to be transferred. Therefore, if they were not mentioned they were not included in the sale Appendix 8.
4.7 The Open Spaces Society restated that it did not agree that the historic events in this instance constituted a severance. It also stated that the CRA should give clearer guidance to applicants regarding historic events Appendix 9.
4.8 The applicant did not comment further.
5.0 Assessment – have the relevant tests been met?
5.1 Officers comments on each of the statutory provisions are set out below -
5.2 Schedule 3 paragraph 2(2)(b) of the Act:
(2)The following are qualifying events for the purposes of this Schedule—
(b) any relevant disposition in relation to a right of common registered under the 1965 Act, or any extinguishment of such a right, where occurring at any time— (i) after the date of the registration of the right under that Act; and (ii) before the commencement of this paragraph;
Section 7 of the Application refers to a transfer between Thomas Handley (currently named in the register at right entry 5, the original registered right holder) and Angela Hammond in 1976. The Applicant also submitted three further conveyances from 1979 and 1987, as set out in the timeline at paragraph 3.3 above. These transfers comprise a disposition of the rights concerned and took place after the rights were the subject of final registration on 24 February 1971 and prior to the commencement of Part 1 of the Commons Act 2006 in North Yorkshire, which occurred on 15 December 2014 (see para 2.2 above).
Therefor this test is met by the application.
5.3 Schedule 3 paragraph 2(3)(c) of the Act:
(3) In sub-paragraph (2)(b) “relevant disposition” means— ……….. (c) in the case of a right of common attached to land, the apportionment or severance of the right
In the leading case of Bettinson v Langton (2001) the House of Lords determined that the very process of creating a register of common rights under the Commons Registration Act 1965 turned such rights into an entity in their own right capable of being dealt with as an asset separately (severed from) from the land to which they were recorded in a register as being attached. They were severable.
The conclusion is, in my opinion, inescapable that subsection (3) transformed the right, on registration, from being a right limited by levanchy and couchancy to being a right for a fixed number of animals.
It is the general law, established by the authorities to which I have referred, NYCC – 24 February 2021 – Planning and Regulatory Functions Sub Committee Right Entry 17 exercisable over West Scrafton Moor/4 OFFICIAL
that when applied to… registered grazing rights…., impels the conclusion that the rights are severable”
(extract from Lord Foscote’s leading judgment)
The Commons Act 2006 subsequently introduced provisions to outlaw severance of common rights but only in respective of any disposition/event taking place after 28 June 2005. The dispositions relied on by the Application, which is the subject of this report, took place first in 1976.
In the lead up to the Act becoming legislation DEFRA issued an explanatory note to members of parliament in January 2006 (Appendix 10) which confirmed at para 54 the significance of the Bettison v Langton decision –
In Bettison v. Langton, the judicial committee of the House of Lords determined that a consequence of the quantification of grazing rights as required by section 15 of the 1965 Act was to enable a commoner to dispose of rights of common independently from the land to which they were traditionally attached (or, alternatively, to sell the land and retain the rights). This is known as 'severance'. Rights which have been severed become 'rights held in gross' and may be freely bought and sold as an incorporeal asset.
Further, para 58 of the same explanatory note explained that “non pro-rata apportionment is a form of severance”. Effectively where rights were recorded in the register as attached to an area of land and that land and the rights were subsequently dealt with via a disposal in disproportionate shares then the rights were effectively severed from the land.
The case law provides clarity on the matter of historic severance. The effect of registering quantified rights under the 1965 Commons Registration Act meant that those rights were then capable of being severed.
Para 5 of Schedule 3 to the Commons Act 2006 provided that there may be regulations introduced covering “what is or is not to be regarded as a severance of a right of common”. This manifested itself in Regulation 41(3) of the Regulations which states:-
41(3) A right of common attached to land is not to be treated as having been severed from that land in consequence of a qualifying event, unless the determining authority is satisfied that the severance was lawful and – (a)there is documentary evidence showing that the parties to the transaction or disposition which is a qualifying event intended the transaction or disposition to have the effect of severing the right of common; or (b)there is evidence that the right of common has been treated since the qualifying event as having been severed.
The view expressed in “Gadsden & Cousins on Common and Greens”, a leading publication on commons legislation, is that whilst ordinarily if a conveyance is silent on the matter common rights attached to land would be transferred with that land (as a result of section 62 of the Law of Property Act 1925) the above regulations effectively override that. Legal advice given to this officer is that as such, Section 62 of the Law of Property Act 1925 does not apply to the historic conveyances subject of this application, contrary to the opinion of the Open Spaces Society.
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However Gadsden goes on to say that for a CRA to be satisfied a historic severance has occurred it should have cogent evidence that one or other of the tests set out in Reg 41(3)(a) or 41(3)(b) has been met.
Consequently where an application includes (in accordance with para 19(3) of Schedule 4 of the Regulations) cogent documentary evidence showing an intention to sever rights and having been “treated” as severed then it is justified in amending its register to account for that.
The timeline of transactions set out in para 3.3 above provides documentary evidence of the intention of parties to sever the 180 rights originally registered as attached to land and evidence of how those rights were subsequently treated.
Gadsden does suggest that caution should be exercised by a CRA when considering an application to record an alleged historic severance where an application is “disputed by a person having an interest in the land”. There is no such dispute in this case – the only objection having been raised by the Open Spaces Society which has pointed out it has no interest in the land.
The conveyances submitted by the applicant and a further conveyance held by the CRA shows that the original right entry 5 registered by Thomas Handley was disposed of into separate lots. These conveyances were not silent with regard to grazing rights and the land conveyed was not proportional to the amount of rights transferred. Therefore the conveyances submitted constitute relevant dispositions evidencing severance of common rights.
Consequently, this test is met by the application.
5.4 Schedule 4 paragraph 19 of the Regulations: -. 19(1)(b and 19(2)(a): Proof of capacity to apply At Section 4 the Applicants state that they are entitled to apply to record a historic event as they are now the owners of the rights exercisable over West Scrafton Moor (CL 105). This is evidenced by a Deed of Gift between Charles Simpson Utley and the applicants Appendix 4. Officers are satisfied that the Applicants have demonstrated their capacity to apply to amend the register.
19(3): inclusion of a written instrument and where the intention to sever has not been expressly mentioned other documentary evidence from the time demonstrating that intention or evidence that the right of common has subsequently been treated as severed. Officers are satisfied that the common rights concerned were treated separately from the land to which they were attached at the time of the 1976, 1979 and 1987 conveyances given the disproportion of the land and rights concerned and were so severed. The grazing rights were then gifted from Mr C. S. Utley to his sons with significantly less land than they were originally attached to, further evidence that they were treated as severed. This test is met by the application.
6.0 Financial Implications
6.1 There are no financial implications to the Council that ordinarily arise from its decision on the Application though it may incur costs in defending any legal challenge made to that decision. It is outside the Council’s control whether or not any interested party attempts such a challenge.
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7.0 Legal Implications
7.1 The mechanism for challenge by an aggrieved party to any decision reached by the County Council in this matter would be by Judicial Review.
8.0 Equalities Implications
8.1 Consideration has been given to the potential for any adverse equality impacts arising from the recommendation and an Equality Impact Assessment screening form is attached at Appendix 11.
9.0 Climate Change Implications
9.1 As the Application seeks to change the status of the grazing rights and not the merits or otherwise of making the change; a full climate change impact assessment is not required.
10.0 Conclusion
10.1 It is your officer’s view that on the balance of probabilities, and for the reasons set out in this report, the legal tests as set out in Schedule 3, paragraph 2(b) of the Act and Schedule 4, paragraph 19 of The Regulations are met by the Application and that consequently the Application should be approved.
11.0 Recommendation
11.1 That the application is approved on the grounds set out in this report.
KARL BATTERSBY Corporate Director - Business and Environmental Services
Author of Report: Jayne Applegarth
Background Documents: Application case file held in Commons Registration, Network Information and Compliance – Business and Environmental Services
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Note 2 2. Name and address of the applicant If there is more than one applicant, Name: list all their names and addresses in Postal address: full. Use a separate sheet if necessary. 4 VA T State the full title of the organisation if the applicant is a body corporate or / an unincorporated Postcode association. If you supply an email address in Telephone number: the box provided, you may receive communications Fax number: from the registration authority or other E-mail address: persons (e.g. objectors) via email. If box 3 is not completed all correspondence and notices will be sent to the first named applicant.
Notes 3. Name and address of representative, if any This box should be completed if Name: a representative, e.g. a solicitor, is instructed for the Firm: purposes of the application. If so, Postal address: all correspondence and notices will be sent to the person or firm named here. If you supply an email address in C tS the box provided, the representative K3o/?rM yb/?i<5Hir7£r Postcode may receive communications from the Telephone number: registration authority or other persons (e.g. Fax number: objectors) via email. E-mail address: Note 4 4. Basis of application for registration and qualifying criteria For further details of the requirements Describe the capacity in which you are entitled to apply — see note 4 (e.g. as of an application, person entitled to exercise right of common which has been varied): including the persons who are entitled to apply As Qp TT+C" e>*^ in respect of each provision, refer to paragraphs 15, 16, 17, 18, 19, 20 or 21 of Schedule 4 to the Commons Registration (England) Regulations 2014.
Tick the box below which best describes why you are applying under Schedule 3:
creation of a right of common:
surrender or extinguishment of a right of common: □
variation of a right of common: □
apportionment of a right of common: □
severance of a right of common: □ transfer of a right of common in gross: □ statutory disposition affecting the commons registers: □ In which month and year did the event above take place?
Register unit number {not required for creation of right of common):
Rights entry number (not required for creation of a right of common nor for statutory dispositions which do not affect rights of common):
T^i6tl ‘T7 ({> ^ H^Kar>L«K (p ) V\Oi »^r\ oi*or> . KJo (?l^rl+rs U a 2c?C TT^ ^NaO£^f^ib^ Tick this box if your application relates to a right of common held in gross: Notes 8. Details of the apportionment If you are applying to register an Specify the name and address of the owner of the land to which is attached the apportionment part of the right of common which is the subject of the primary application: you must submit a separate 'primary' application along with this application. A primary application can be made where only part of the apportioned right attached to land has been surrendered, extinguished, varied, severed Specify the rateable apportionment of the right (i.e. the quantity of the right fro/77 the land which attaches the relevant land following the apportionment): to which it was attached, or is the subject of a statutory disposition. If the right is to be apportioned otherwise than raleably, explain the basis for that claim and state which evidence you have provided which corroborates that claim: Note 9 9. Supporting documentation List all supporting documents (deeds or other legal documents) and maps accompanying the application, or primary application 2, (? Note 10 10. Fairness test A test of fairness does not apply during the transitional period (ask the registration authority whether it currently applies). If you apply after that period you must explain why, taking into account the effect of your application and any persons affected by it, it would be fair for the registration authority to amend the register. 23. JAN. iS/6 FINiA NiCE ACT J931 Fuosav, is made the M'njL day of One thousand nine hundred and seventy B E T W E E N THOMAS HMDLEY of Culverham Farm West Scrafton Leybum North Yorkshire (hereinafter called "the Vendor") of the one part and ANOETjA HAMMOND, of the Caravan West Scrafton Leyburn afores.aid (hereinafter called "the Purchaser") of the other part --- HER E AS the Vendor is seised ofthe property hereinafter described for an estate infee simple in possession free from incumbrances and has agreed with the Purchaser for the sale thereof to her at the price of QNS TH0USAND„S.IX, ftttntit?7:b Anb ftfty pounds ______—------NOW THIS BEEP Wia?NESSETH as follows . JH. consideration of the sum of Chie thousand six hxmdred and fifty pounds paid by thePurchaser to the Vendor (the receipt whereof theVendor hereby acknowledges) the Vendor as beneficial owner hereby conveys unto thePurchaser T.T. 'PH&T piece or parcel of land situated in the township ofWest Scrafton in the Coxmty of North Yorkshire together with thebarn erected on some part thereof AT.L WHTcIl premises are for the purposes of identification only !' delineated onthe plan annexed hereto and thereon edged green and are hereinaXt^ called "the Property" toCxETHER also with the rights and easementsmentioned in i; i' Clause 2 hereof TO HOLD unto thePurchaser in fee simple ------2. 31S2L following rights and easements for the Purchaser and her successors/in il title the owners and -occupiers for the time being of the Property or any part thereof and her or their respective servants andlicensees are included in the I Conveyance hereby made namely (1) a right ofway from time to time andat all times hereafter by day or night and^for all purposes connected with the use andenjoyment of the Property with or without vehicles of any description and with or without animals to andfrom the Property or any part thereof over and-jalong the roadway shown by the brown dotted lines on saidthe plan between the points marked A, Band Cthereon and so far as the Vendor can grant tl. =. same over and along the roadway shown coloured blue on the said plan — (2) full right and liberty from time to time and at all timeshereafter : maintain and keep the said roadway in repair _ __ (3) full right and liberty to install and maintain cattle gr' in the roadway at the points marked A and C on the said plan (4) full right and liberty to install and use a septic tank : all necessi: ancillary piping in adjoiningthe land of the Vendor and to enter .. :>r_ the said adjoining land of the Vendor for the purpose of installir.f^ u.;.;. i (5) tile riglit to theunimpeded access o£ light and air to all the existing windows of the said ham and to all windows which may from time to time hereafter he made in the sides of the said harn orof,/any^ huilding which may from time to time hereafter he erected on the Property ------—------~ (6) (a) the right to construct and lay such pipes wires and other j apparatus as shall he required for water and electricity purposes , (hereinafter called "the new services") in under or the adjoining land of the Vendor and to connect the new services where need he with and , to theusepipes main cables and other services (hereinafter called "the existing services") now laid or hereafter to he laid in or under the said adjoining land of the Vendor so far as may he necessary for^ the proper use and enjoyment of the Property (h) the right enter into to and upon the said adjoining land of the Vendor for the purpose of constructing laying andconnecting the new . services and for the purpose of inspecting cleansing and repairing the new services andthe existing services the Purchaser making reasonable compensation for any damage caused by the exercise of such rights sintTRCI to the liability of each person making use of the existing services to contribute rateably to the expense of theuse maintenance -----and renewal thereof whenever necessary i 5. THE. Vendor hereby acknowledges the right of the Purchaser production of the documents mentioned in the Schedule hereto and todelivery of copies thereof and hereby undertakes with the Purchaser for the safe custody of the same ------~ ~ . n. V. uvovnv hgUTTPIED that the transaction hereby effected does not form plrt Of alarger transaction or of a series of transactions inrespect of which the amount or value or aggregatethe amount or value of the consideration exceeds lifteen thousand pounds-----; “ aw™ Whereof the parties hereto have hereunto set their hands and seals the day andyear first hereinbefore written 'T'Fm hp-peinhefore referred to 1. James Utley 2^th July 19O8 Gonve'vaiice Frederick Utley 2. Thomas Utley William Utley James Utley Frederick Utley Ann Utley Ada Scott 3. Thomas Utley 1. Thomas Utley 24th July 19O8 Mortgage, 2. Ann Utley Ada Scott 1. Ada Scott 50th July 1920 n/tr.troyatiee 2. Thomas Utley X .Toseoh Handley X.' • .' = / 5 f-. S- S3 6 . S5 , .i .; - -i __ Land Registry Title number NYK437671 Edition date 26.02.2018 Official copy This official copy shows the entries in the register of title on of register of 5 April 2018 at 17:44:32. This date must be quoted as the "search from date" in any official search application based on this copy. title The date at the beginning of an entry is the date on which the entry was made in the register. Issued on 5 April 2018. Under s.67 of the Land Registration Act 2002, this copy is admissible in evidence to the same extent as the original. For information about the register of title, see www.gov.uk/land-registry . This title is dealt with by HM Land Registry Durham Office. A: Property register This register describes the land and estate comprised in the title. NORTHYORKSHIRE : RICHMONDSHIRE 1 (19.10.2016) The Freehold land shown edged with red on the plan of the above title filed at the Registry and being Land at Bridge End Farm, West Scrafton, Leybum (DL8 4RT) . 2 (26.02.2018) A new title plan based on the latest revision of the Ordnance Survey Map and showing an amended extent has been prepared. B; Proprietorship register This register specifies the class of title and identifies the owner. It contains any entries that affect the right of disposal. Title absolute 1 (19.10.2016) PROPRIETOR: CHARLES WILLIAM UTLEY of Bridge End Farm, West Scrafton, Leyburn DL8 4RT andKEVIN GEORGE UTLEYof Dambreezy, West Scrafton, Leybum DL8 4RU. 2 (19.10.2016) The value as at 19 October 2016 was stated to be between £500,001 and £1,000,000. 3 (19.10.2016) RESTRICTION: No disposition bya sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court. Page 1 Title number NYK437671 C: Charges register This register contains any charges and other matters that affect the land. 1 (19.10.2016) The leuid tinted pinkon the title plan is subject to the following rights reserved by a Conveyance thereof and other land dated 25 November 1892 made between (1) Jonas Swales (2) William Utley Except and always reserved out of and from this present grant all and all manner of royalties of fishing fowling hawking and hunting and free warren and chase and of all manner of eschears fines and amerciaments courts leet and courts baron view of franJ^ledge profits and perquisites of Courts and leets whatsoever to the same belonging and all waives strays rights juristrictions and franchises And all mines of lead iron coal freestone and slate with full and free liberty and power to dig for and get the same other than inhouses and gardens and parcels of the said hereditaments and premises and to lead and carry away the same at the wills and pleasures of the person or persons entitledthereto otherthan such freestone and slate as shall be needful for the erecting repairing and walling the aforesaid hereditaments and premises NOTE; Only an examined abstract extract of the conveyance was supplied on first registration. 2 (19.10.2016) The parts of the land affected thereby are subject to the leases set out in the schedule of leases hereto. The leases grant andreserve easements as therein mentioned. 3 (09.01.2017) The land so far as affected thereby is subject to the rights granted bya Conveyance of the adjoining land edged and numbered 1 inblue onthe title plan land dated 9 January 1976 made between (1) Thomas Handley and (2) Angela Hammond. NOTE: Copy filed under NYK74993. 4 (09.01.2017) The land so far as affected thereby is subject to the following right granted by an Assent of the adjoining propertyknown as Hill Top dated 15 December 1980 made between (1) Charles Simpson Utley and (2) Gordon Utley "TOGETHER WITH the right for the said Gordon Utley and his successors in title owners or occupiers of the said property and his and their undertenants andservants and for all purposes with or without horses carts or other vehicles mechanically propelledor otherwise to pass and repass over and along the route in Ordnance Survey Number 112 shown with a green line onthe said plan for estate in fee single". NOTE:-Copy plan filed under NYK385888, 5 (09.01.2017) The land is subject to the following rights reserved by a Conveyance of adjoining land edged and numbered2 in blue on the title plan dated 13 April 1987 made between (1) Thomas Handley (Vendor) and (2) Charles Simpson Utley (Purchaser):- "EXCEPT and RESERVING in fee simple unto the Vendor and his successors in title the owners and occupiers for the time being of Culverham House West Scrafton and delineated on plan number two and thereon edged greenthe following rights and easements:- (1) full right and liberty at all times thereafter to place an oil storage tank of maximum dimensions length six feet height four feet and depth two feet along the western wall of Culverham Farm House in the position indicated bya blue cross on plan number two together with the right to maintain repair and replace the same together also with the right to fill the same with oil Page 2 Title number NYK437671 C: Charges register continued (2) full right andliberty to enter into and upon the property for the purpose of inspecting maintaining and repairing (so far as shall prove necessary) Culverham Farm House West Scrafton." NOTE:- Copy plan number two filed under NYK179082. (09.01.2017) The land so far as affectedthereby is subject to the rights granted by a Deed conveyingthe adjoining property now known as Dambreezy dated 30 January 1989 made between (1) Charles Simpson Utley and (2) Kevin George Utley. NOTE 1: The property known as Dambreezyreferred to is so marked on the title plan. NOTE 2: Copy filed. Schedule of notices of leases Registration date Property description Date of lease Lessee's title and plan ref. and term 14.12.1994 Electricitysub-station10.10.1984 NYK160775 tinted blue 25 years from 10 October 1994 End of register Page 3 18 12 17 1 130435 1 5 Ooxk*/ MR. THOMAS HANDLEY -to - T. W. DENT and PARTNERS Property situate at West Scrafton near Leybum North Yorkshire. WILLAN & JOHNSON SOLICITORS LEYBURN 18 12 17 1 l30'35 1 keep the original documents safe 5. It is certified that this transaction does not form part of a larger transaction or of a series of transactions in respect of which the amount or value or the aggregate amount or value of the consideration exceeds Twenty thousand pounds ------ The First Schedule ALL THOSE several closes pieces or parcels of land situate and comprising part of Culverham Farm in West Scrafton near Leyburn in the County o:f North Yorkshire containing in the whole 9»559 acres or thereabouts as are for the purpose of identification only delineated on the plan annexed hereto and thereon edged blue and are with their numbers descriptions and acreages more particularly described as follows:- Field number Description Acreage 29 inch Ordnance, on Tithe plan Survey map 132 184 Hall Close I.850 135 162 Longfield 2.356 139 (158 Bruffers Lands 5.353 (165 Total 9.559 TOGETHER ALSO with eighteen sheepgaits in upon and through West V ■^crafton Moor ------ The Second Schedule 25th November 1892 1. Jonas Swales 2. William Utley 1 2 3 24th July 1908 CONVEYANCE 1. James Utley and Frederick Utley 2. Thomas Utley William Utley James Utley Ann Utley and Ada Scott 3. Thomas Utley 30th July 1920 The said Conveyance of this date 31st July 1920 MORTGAGE 1. Joseph Handley 2. John Hogg 3. John Henry Rogers Isabella Rogers 13 17 1 13043 5 1 ,/5 J wjb; Cc / \ ‘ilolm Brae bta' /a- ,t \ / / !<1? :b. CayqUi^Pcd BridqjjZ^ 0 LCfl' LOT ./■ -z In. 'o --rLr' ■^iy V bear. /. /^or /«;•• - N _ /• \ ■' \miiTopL W; W /s' \ r* r" w» j n H ^ y )yy \juf, '■ . -y* A-. y v\ ov1' i o i\ r s a •••>.. , 1‘ . / ,7 \ \ ■J'l'AAtXKKt, QW ')) I I j ^ \y;' ' v UMf XRturviir V i M ''"■/a/X...Jr" M / / in*...... ,, • .. »»#.«/ i * tlMlMMH* ' V •. ' 1 I ‘V-f' " ai.M/HM.• / Ifostcfcsc House fy x V ..'y ^ 7 QrablreeHab <, /•'•A A A ...<•■... - . F ifllllI / u. Vor4...... i ' y~ \| » ’ V # |«MM I ' y- .i... i fs / ■/:■ llm*. y\ « \V ! i f": Ao> .IttlOIMl* I 1 *'•**•k• J • •*•t MIMI, i I ...... t, \ - .... y1'- mT N Jayne Applegarth From: Leyburn Dear Jayne Thank you for your email dated 27th February 2019. We read with interest the comments by Hugh Craddock. We are here to update the Register of Common Land, no more no less. We apologise if Hugh Craddock believes our application has shortcomings; this was not our intention. We had originally applied on the understanding that our clients owned all of the dominant tenement shown on the supplemental map for right entry 17. Your office highlighted that this was not however correct and that the land, comprised within the Conveyance dated 09th January 1976 (“the Conveyance”), was not owned by our clients. Consequently, we cancelled our application and submitted form CA14. The Rights were not conveyed with the land and the Conveyance is clear on this point. It was not the intention of the farmer, Mr Thomas Handley, to convey (or apportion the Rights) the Rights to Angela Hammond. Otherwise, the Rights would have been expressly referred to within the body of the Conveyance. Mr T Handley subsequently sold the farmland (and the Rights) to our clients’ late father, Mr Charles Simpson Utley. We attach:‐ 1. Conveyance dated 25th October 1979 made between (1) Thomas Handley and (2) Charles Simpson Utley which includes Forty Three (43) sheepgaits 2. Conveyance dated 25th October 1979 made between (1) Thomas Handley and (2) Charles Simpson Utley which includes Fifty Six (56) sheepgaits 3. Conveyance dated 13th April 1987 made between (1) Thomas Handley and (2) Charles Simpson Utley which includes Sixty Three (63) sheepgaits The intentions of the parties were clear. The Conveyance did not convey any Rights as Mr Handley subsequently sold the Rights to our clients’ late father. Mr Charles Simpson Utley always exercised the Rights and now these Rights are owned and exercised by his two sons. The application should be granted. Kind Regards Stuart Hall Director Hall & Birtles Solicitors The Office, 01969 625 526 Golden Lion Yard 01969 625 255 Leyburn 61331 Leyburn 1 such by the close of business on 11 April 2019. I have also referred these latest comments to my colleagues in Legal Services for their consideration. Kind Regards Jayne Applegarth Commons Registration Officer [email protected] 01609 534753 Access your county council services online 24 hours a day, 7 days a week at www.northyorks.gov.uk. WARNING Any opinions or statements expressed in this e-mail are those of the individual and not necessarily those of North Yorkshire County Council. This e-mail and any files transmitted with it are confidential and solely for the use of the intended recipient. If you receive this in error, please do not disclose any information to anyone, notify the sender at the above address and then destroy all copies. North Yorkshire County Council's computer systems and communications may be monitored to ensure effective operation of the system and for other lawful purposes. All GCSX traffic may be subject to recording and/or monitoring in accordance with relevant legislation. Although we have endeavoured to ensure that this e-mail and any attachments are free from any virus we would advise you to take any necessary steps to ensure that they are actually virus free. If you receive an automatic response stating that the recipient is away from the office and you wish to request information under either the Freedom of Information Act, the Data Protection Act or the Environmental Information Regulations please forward your request by e-mail to the Information Governance Team ([email protected]) who will process your request. North Yorkshire County Council. LEAP Email Reference |F:6d26d990-9a55-4c87-8362-49baf4b1039f|M:d4341bf3-d1ee-42a4-928a-d112c15aab55| (Please do not delete) 2 Extract from the Commons Bill Explanatory Notes January 2006 Clause 9 and Schedule 1: Severance 53. Clause 9 effects a prohibition on the severance of rights of common. Before the passing of the 1965 Act, most rights of common were attached to the land farmed by the commoner (the dominant tenement). The reason was that, at common law, the numbers of animals which could be grazed on the common by the commoner was determined by the capacity of the dominant tenement to accommodate animals over the winter (known as rules of 'levancy and couchancy'). Typically the common was not grazed in winter and dates were established when animals were allowed on to the common and when they had to be removed. Livestock usually had to be over-wintered on commoners' own farms which imposed a natural ceiling on their grazing rights. Such rights, while not explicitly quantified, were thus subject to a theoretically measurable constraint. It was therefore not possible to trade in a right of common separately from the land owned by the commoner, as the right could not exist independently of the dominant tenement because it was defined by reference to the dominant tenement. The courts adopted a rule that any purported severance of unquantified rights from the holding to which they were attached would extinguish the rights. 54. Section 15 of the 1965 Act required that, for the purposes of registration, all commoners register the actual number of animals in respect of which they claimed rights of grazing. This meant that, once rights of grazing had been quantified and registered, the capacity of the commoner's own holding to over-winter stock ceased to be relevant. In Bettison v. Langton 15, the judicial committee of the House of Lords determined that a consequence of the quantification of grazing rights as required by section 15 of the 1965 Act was to enable a commoner to dispose of rights of common independently from the land to which they were traditionally attached (or, alternatively, to sell the land and retain the rights). This is known as 'severance'. Rights which have been severed become 'rights held in gross' and may be freely bought and sold as an incorporeal asset. 15 Bettison and another v. Langton and others [2001] 1 AC 27. 55. The problem with grazing rights which have been severed is that the local link between the commoners and the land over which the grazing rights are exercised may be lost since the owner of the rights can sell them to anyone, including farmers who live far away from the common. This can cause management difficulties for common land where some right holders have no close contact with the common and those who manage it. 56. Clause 9 prohibits further severance of rights of common, subject to the exceptions specified in any other Act 16 or in Schedule 1. Clause 9, and therefore the exceptions in Schedule 1, apply to registered rights of common only which would otherwise (apart from clause 9) be capable of being severed. They do not, therefore, apply to rights of common which are unquantified (such as a right to gather firewood or to dig peat for the hearth), nor are they likely to apply to 'appendant rights' (which the courts have held not to be severable, regardless of whether the right is quantified). 16 The only enactment known to permit severance in certain circumstances is contained in section 33 of the Greenham and Crookham Commons Act 2002. 57. Subsections (3) and (4) make provision in relation to any disposition of rights of common attached to land, or any disposition of land to which rights of common are attached, made after the commencement of this clause by which rights are purported to be severed, so that the severance is of no effect. Subsection (3) provides that an instrument (such as a conveyance) which purports to effect the severance of a right of common from the dominant tenement, is to be void to the extent that it would effect severance. So where a conveyance provides that the rights attached to a dominant tenement are to be conveyed from X to Y (but X remains the owner of the dominant tenement), the conveyance will be void to the extent to which it conveys the rights, and the rights will remain attached to X's dominant tenement. Subsection (4) also provides that a disposition of the dominant tenement by which the rights are purported to be reserved to the vendor has effect so that the rights are conveyed with the land, notwithstanding the terms of the conveyance. 58. Subsection (5) provides that the apportionment of rights of common must be pro rata. To the extent that any instrument purports to apportion otherwise than pro rata, it will be void. This means that, where a dominant tenement is divided into two or more parcels in separate ownership (for example, on a sale of a farm in two separate lots), the rights attached to the original dominant tenement are assigned proportionately to the separate parcels according to the area of each parcel relative to the area of the original dominant tenement. The reason for this is that non-pro rata apportionment is a form of severance. For example, a commoner might own land to which 100 rights to graze cattle are attached. That commoner sells half that land to X and half the land to Y, but purports to assign 75 of the rights as attached to X's land and 25 as attached to Y's land. In that case the instrument of sale will be void to the extent that it purports to convey more (or for that matter less) than half the rights of common with each of the two parcels of land. The provision ensures that rights of common will continue to be attached to the same land as now, even where apportionment is not registered (see clause 8). Initial equality impact assessment screening form (As of October 2015 this form replaces ‘Record of decision not to carry out an EIA’) This form records an equality screening process to determine the relevance of equality to a proposal, and a decision whether or not a full EIA would be appropriate or proportionate. Directorate BES Service area H&T Proposal being screened To grant application CA14 047 which is seeking to record a historic severance event in the common land register Officer(s) carrying out screening Jayne Applegarth What are you proposing to do? Grant the application Why are you proposing this? What are the It is a statutory duty of the County Council as desired outcomes? Registration Authority under the Commons Act 2006 to consider the application submitted. On consideration all the legal tests have been met therefore the application should be granted. Does the proposal involve a significant The County Council as Registration Authority has a commitment or removal of resources? statutory duty to maintain the common land register. Please give details. Is there likely to be an adverse impact on people with any of the following protected characteristics as defined by the Equality Act 2010, or NYCC’s additional agreed characteristics? As part of this assessment, please consider the following questions: To what extent is this service used by particular groups of people with protected characteristics? Does the proposal relate to functions that previous consultation has identified as important? Do different groups have different needs or experiences in the area the proposal relates to? If for any characteristic it is considered that there is likely to be a significant adverse impact or you have ticked ‘Don’t know/no info available’, then a full EIA should be carried out where this is proportionate. You are advised to speak to your Equality rep for advice if you are in any doubt. Protected characteristic Yes No Don’t know/No info available Age Disability Sex (Gender) Race Sexual orientation Gender reassignment Religion or belief Pregnancy or maternity Marriage or civil partnership NYCC additional characteristic People in rural areas People on a low income Carer (unpaid family or friend) Does the proposal relate to an area where there are known inequalities/probable No impacts (e.g. disabled people’s access to public transport)? Please give details. Will the proposal have a significant effect on how other organisations operate? (e.g. No partners, funding criteria, etc.). Do any of these organisations support people with protected characteristics? Please explain why you have reached this conclusion. Decision (Please tick one option) EIA not Continue to full relevant or EIA: proportionate: Reason for decision The application has met all the criteria contained in the Commons Act 2006 and the Commons Registration (England) Regulations 2014. Signed (Assistant Director or equivalent) Barrie Mason Date January 2021 OFFICIAL ‐ SENSITIVE