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Court of Appeal Judgment Template Neutral Citation Number: [2016] EWCA Civ 446 Case No: C1/2015/1380 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION PLANNING COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/05/2016 Before : THE CHANCELLOR OF THE HIGH COURT LORD JUSTICE TOMLINSON and LORD JUSTICE LEWISON - - - - - - - - - - - - - - - - - - - - - 1. MARTIN LITTLEJOHNS 2. SARAH LITTLEJOHNS Appellants -and- DEVON COUNTY COUNCIL Respondent -and- DUCHY OF CORNWALL Interested Party - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Nicholas Le Poidevin QC (instructed by SW Law Solicitors) for the Appellants Mr Stephen Whale (instructed by Devon County Council) for the Respondent Hearing dates : 17th February 2016 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Judgment Approved by the court for handing down. Littlejohns v Devon County Council The Chancellor of the High Court : 1. This is an appeal by Martin and Sarah Littlejohns (“the Littlejohns”) from the order dated 24 March 2015 of Mrs Justice Lang dismissing their claim for judicial review of the decision of the respondent, Devon County Council (“DCC”), on 28 May 2014 refusing their application to register rights of common under the Commons Act 2006 (“the 2006 Act”). 2. At the heart of the appeal lies the question of law whether it is 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 (“the 1965 Act”) 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. It is a point of law on which commentators, among whom is the Department for Environment, Food and Rural Affairs (“DEFRA”), have been in disagreement. The factual background 3. I gratefully take much of the following summary of the background facts from the judgment of Lang J. 4. DCC is the commons registration authority which maintained the register of common land for its area under the 1965 Act until its repeal by the 2006 Act and now maintains the register under the 2006 Act. 5. DCC registered the land in register units CL 155 (Okehampton Common), CL164 (Forest of Dartmoor) and CL 135 (the Triangle) as common land in 1967 and 1968 pursuant to the 1965 Act. 6. By an application dated 2 March 2010 pursuant to schedule 3 to the 2006 Act the Littlejohns, who are husband and wife, applied to DCC to amend the register of common land by the registration of the right to graze cattle and sheep on those register units The right claimed is 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. There were five statutory declarations sent with the application, two of which were made by Mr and Mrs Littlejohns respectively. They rely on the following matters. 7. They claim that they and Mr Littejohns’ father 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 DCC, 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. DCC acknowledged receipt of the notice. Under the relevant regulations this was required to be followed by a formal application. DCC’s records indicate, however, that no formal application was made and so the rights were never registered. Mr Littlejohns stated in his Judgment Approved by the court for handing down. Littlejohns v Devon County Council 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. 8. 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. 9. On 28 May 2014 DCC 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 CL 135, CL 155 and CL 164 for more than thirty years, DCC 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. Rights of Common 10. The pre 1965 Act history and law relating to common land and rights of common were set out extensively in the report of the Royal Commission on Common Land 1955-1958 (“the Royal Commission”), Cmnd 462, which was presented to Parliament in July 1958. A shorter but sufficient account can be found in the speech of Lord Templeman in Hampshire County Council v Milburn [1991] 1 AC 325 at pages 338- 341. 11. The recommendations of the Royal Commission so far as concerns common land (as distinct from town and village greens) fell into three parts: the need to identify common land and those claiming rights over it; public access to common land; and the management of common land. The 1965 Act 12. I shall only refer to those provisions of the 1965 Act which concern common land and rights of common as distinct from town or village greens. 13. Section 1(1) provided that there shall be registered, in accordance with the provisions of the 1965 Act, land in England or Wales which is common land, rights of common over such land, and persons claiming to be or found to be the owners of such land. 14. Section 1(2) is critical to the present case and this appeal. It provided as follows: “After the end of such period, not being less than three years from the commencement of this Act, as the Minister may by order determine - Judgment Approved by the court for handing down. Littlejohns v Devon County Council (a) no land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered; and (b) no rights of common shall be exercisable over any such land unless they are registered either under this Act or under the Land Registration Acts 1925 and 1936.” 15. Section 3 provided that, for the purpose of registering common land, rights of common over it, and ownership of it, every registration authority shall maintain a register of common land. 16. Section 4 provided for the registration of any land as common land, any rights of common over it and ownership of it. Sub-section (5) provided that the registration under section 4 shall be provisional until it has become final under the following provisions of the Act. Sub-section (6) provided that an application under section 4 shall not be entertained if made after such date, not less than three years from the commencement of the 1965 Act, as the Minister may by order specify. 17. Section 5 dealt with objections to registration under section 4. Sub-section (2) provided that the period during which objections to registration under section 4 may be made shall be such period, ending not less than two years after the date of the registration, as may be prescribed. Sub-section (6) provided for objections which were not withdrawn to be referred to a Commons Commissioner. 18. Section 6 contained provisions for the disposal of disputed claims by Commons Commissioners and that, if the Commons Commissioner confirmed the claim, it shall become final. 19. Section 7 provided that, if no objection is made to a registration under section 4, or if objections are withdrawn, the registration shall become final. 20. Section 10 provided that the effect of registration was as follows: “The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only” 21. Section 11 provided that the provisions of the 1965 Act shall not apply to the New Forest or Epping Forest and shall not be taken to apply to the Forest of Dean. 22. Section 13 made provision for amendments of the register, so far as relevant to common land: “Regulations under this Act shall provide for the amendment of the registers maintained under this Act where— (a) any land registered under this Act ceases to be common land or a town or village green; or Judgment Approved by the court for handing down.
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