Howse v Newbury District Council

Secretary of State for the Environment executing deed extinguishing commonable and other rights over part of Greenham Common – Council intending to build enterprise centre on relevant land – Appellant applying for injunctive relief – Appellant’s claim struck out – Whether relevant land common land – Whether appellant’s rights extinguished – Appeal dismissed The appellant was a resident of Greenham Common Women’s Peace Camp, located adjacent to land know as Greenham Common, which was subject to rights of common. She was also the owner of land known as the Sanctuary which was close to Greenham Common. In 1991 the Secretary of State sought to extinguish the commonable or other rights in or over part of Greenham Common (the land) under section 1 of the Defence Act 1854 and, in accordance with sections 99-107 of the Lands Clauses Consolidation Act 1845, advertised a meeting of the parties entitled to such rights. At the meeting a committee of commoners agreed the amount of compensation to be paid by the Secretary of State to the parties for the extinguishment of the rights. On May 30 1991 a deed was executed whereby it was declared that the commonble and other rights were extinguished on the payment of £90,312.50. The appellant and three others issued proceedings against the respondents seeking an injunction to prevent them from allowing the construction of an enterprise centre on the land, alleging that it would contravene section 194 of the Law of Property Act 1925. The respondents applied for a declaration that the land was no longer common land and for the plaintiff’s proceedings to be struck out either as disclosing no cause of action or as an abuse of process. The High Court allowed the respondents’ application and made a declaration that the vesting deed had extinguished the commonable rights. The appellant appealed contending that she had been entitled to be invited to the meeting, and to compensation, and therefore her commonable and other rights had not been validly extinguished. It was submitted that although her commonable rights had not been registered in accordance with section 1(1) of the Commons Registration Act 1965, that did not prevent her having “commonable or other rights” within the 1845 Act, because the 1965 Act did not apply to the 1845 Act. She further submitted that her rights, as the owner of the Sanctuary, granted expressly or impliedly by the 1938 conveyance of it, had been extinguished by the deed and that therefore she had further been entitled to be at the meeting and to have been compensated. Held The appeal was refused. 1. The purpose of the statutory procedure under the 1845 Act was to enable the amount of compensation to be paid for the extinguishing of the commonable or other rights to be agreed between the promoters of the undertaking to the holders of the rights. A person who was not entitled to any such rights was not entitled to compensation and accordingly was not entitled to take part in the procedure under the Act. Therefore the appellant had not been entitled to be invited to the meeting or to be represented by the committee or receive compensation. 2. The appellant’s private rights under the 1938 conveyance had not been extinguished by the 1991 deed. The 1845 Act did not provide for such rights to be extinguished, because private rights were not “commonable or other rights” within the scope of section 107 of the Act. Since it was clear from the map that the appellant’s rights under the conveyance would not be interfered with by the construction of the enterprise centre, it had accordingly been appropriate for her claim to be dismissed. The appellant appeared in person; John Steel QC and Jonathan Moffett (instructed by Irwin Mitchell, London agents for the solicitor to Newbury District Council) appeared for the respondents.