Mid Glamorgan County Council v Ogwr Borough Council and others

Compulsory acquisition of common land — Intention to build reservoir — Abandonment of plan — Sale of land for golf club — Whether council entitled to have commons register amended by deleting land — Whether commoners’ rights extinguished — High Court finding for commoners — Court of Appeal allowing appeal — Register to be modified — Judgment for councilIn 1968 Mid Glamorgan Water Board decided to build a new reservoir. They obtained powers of compulsory acquisition under a private Act of Parliament, the Mid Glamorgan Water Act 1968. The proposed site formed part of Coity Wallia Common subject to the rights of common by about 180 people. The lord of the manor as owner of the soil of the common conveyed his interest to the board subject to the rights of the commoners. In dealing with the commoners, the board followed the procedures laid down in Schedule 4, electing a committee which negotiated with the board on the compensation. The board did not serve notices to treat on any individual commoner. The compensation money was eventually paid and the executed vesting deed and receipt was completed by dating. The board abandoned its plans to build the reservoir and sold the land to Ogwr Borough Council for use as a golf course. The land was bought bona fide believing that it was no longer common land. In 1983 the borough granted a 99-year building lease for the development of the golf course. In 1985 the council attempted to clear the title by amendment of the Register under section 13 of the Commons Registration Act 1965. Some commoners objected, contending that the compulsory purchase had not effectively extinguished their rights. The court found in favour of the commoners and the council appealed. Held The appeal was allowed. 1. The compulsory acquisition procedure was not invalidated by the board’s omission to serve a notice upon each individual commoner. Schedule 4 provided a different route for the authority to achieve their purpose. 2. The right to have the deed set aside was a “mere equity” liable to be defeated by a bona fide purchaser of a legal or equitable interest without notice. Here the council in fact acquired the legal estate in the land and there was a finding that they bona fide believed that it was no longer common land. 3. The land did not remain common land as defined in the Commons Registration Act 1965 because it was once waste of the manor. Para 7(2) of Schedule 4 provided that upon execution of the deed, not only should the commonable rights over the land be extinguished, but the authority “shall be entitled to immediate possession thereof”. That right to possession was a right to exclude the commoners and everyone else. It was a right to enclose the common land which was inconsistent with the survival of any public rights. Elizabeth Appleby QC and Robin Campbell (instructed by the solicitor to Ogwr Borough Council and North & Nam, of Cardiff) appeared for the council and Bridgend Golf Club; Sheila Cameron QC and Frank Hinks (instructed by Edward Harris & Son, of Swansea) appeared for the commoners.