Cresstock Investments Ltd v Commons Commissioner

Register of common land — Objection to inclusion — Inadvertent expropriation or dedication to public use of private land — Rectification of register sought — Whether uncultivated woodland was ancillary to and enjoyed as part of dwellinghouse — Whether such land came within definition of garden for purposes of rectification — Application by owner for rectification — Whether owner proving requisite use and enjoyment — Decision against owner by Commons Commissioner — Owner’s appeal allowed — Registration cancelledThe appellant was a private company owned and controlled by B, who, although British, spent most of his working life abroad, making only occasional visits to England. In 1964 B contracted to purchase a dwellinghouse known as Spring Cottage, Lordswell Lane, Crowborough, Sussex. On August 10 1964 it was conveyed to the company on the direction of B. In 1987, without any intervening change of ownership, the title was registered at HM Land Registry. The whole of the land registered was four and a half acres. It fell into two parts: to the south was Spring Cottage, a substantial old dwelling surrounded by a well-cultivated lawn and flower beds. To the north of this was an area of shrubbery and woodland which was not fenced off from the other and consisting of more than an acre, was registered as common land on an application, dated June 26 1968, of a neighbouring owner. B, being absent, was unaware of this until 1986. When the registration was discovered, the company raised an objection claiming that the land was part of the garden of Spring Cottage and hence fell within section 1(2)(a)(ii) of the Common Land (Rectification of Register) Act 1989. A Commons Commissioner heard the objection and after visiting the site, concluded that the objector had not satisfied the burden on it of proving that, at all times since August 1945, the land had been used and enjoyed with Spring Cottage. Therefore, he refused the company’s application to rectify the register. The company appealed against that decision by way of case stated. Section 1(1) of the 1989 Act provided that, within three years of the passing of the Act, any person might, by notice in writing, given to the registering authority maintaining a register of common land and of town and village greens under the Commons Registration Act 1965, object to the inclusion in either of the registers of land in respect of which certain requirements were satisfied. One of those requirements was that the land was ancillary to a dwellinghouse which was not on the land: see section 1(2)(a)(ii). For the purposes of that requirement, land ancillary to a dwellinghouse meant a garden, private garage or outbuildings used and enjoyed with the dwellinghouse. Held The appeal was allowed and the registration was cancelled. 1. This was the first case to arise under the 1989 Act. The purpose of the Act was to provide for the removal from the register maintained under the Commons Registration Act 1965, land on which there was a dwellinghouse or which was ancillary to a dwellinghouse. It sought to correct a deficiency in the 1965 Act, which had led to injustices being suffered by a number of householders. Under the 1965 Act, any citizen could provisionally register any piece of land thought to be common land. The applications frequently but unjustifiably included dwellings. The registration became absolute in some cases without the owner being aware of the application. Hence, the need for the short remedial Act of 1989. 2. To obtain relief under the 1989 Act: first, the land had to be the site of a building consisting of one or more dwellinghouses or ancillary to a dwellinghouse. Second, ancillary land was limited to a garden, private garage or outbuildings used and enjoyed with a dwellinghouse. Third, the ancillary land had to have existed as such since August 5 1945 — 20 years before the passing of the 1965 Act. 3. Although the Commons Commissioner had not appeared before the court, so that there had been no opposing argument, the court accepted the submissions of the company: (1) that the commissioner had defined “garden” too narrowly in applying the dictionary definition; and (2) that the ownership of the land together with the house — established since 1933 — raised a presumption that it was ancillary to the dwelling and part of its garden. There was no evidence that it had ceased to be so. 4. This was a substantial residence dating from a period when large gardens were more common than today. There was nothing to indicate that the land in question was precluded from being described as ancillary to the house. There might be grounds associated and held with a house which were so extensive that they could not be said to be ancillary to it, but that was not the case here. 5. The definition of “garden” relied upon by the commissioner referred to its use for the cultivation of flowers, fruit and vegetables. That placed too narrow a meaning on the word as used in the 1989 Act. The purpose of the Act was not the preservation and promotion of horticulture but the remedying of inadvertent expropriation or dedication to public use. It could not be that an objector was required to show that the land had been cultivated continuously since 1945 any more than he would be required to show that the house had been occupied throughout that period. Frequently, parts of a large garden were left wild and uncultivated. They remained available for cultivation and use and formed part of the garden. 6. The land conveyed by the conveyance of 1933 to the previous owner was prima facie a conveyance of a dwellinghouse and land ancillary to it as defined in the 1989 Act; conveying, as it did all, of the land subsequently conveyed to the company and there being nothing in the description in the plan attached to the conveyance to suggest that the land was other than land ancillary to the house. Samuel Parish (instructed by Thomson Snell & Passmore, of Tonbridge) appeared for the owner; and the Commons Commissioner did not appear and was not represented.