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 commoners’ rights extinguished — High Court finding for commoners — Court of Appeal allowing appeal — Register to be modified — House of Lords allowing appeal — Judgment for commonersIn 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 elected 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 paid and the executed vesting deed and receipt was completed by dating. The board abandoned their 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 a 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, but the council’s appeal was allowed by the Court of Appeal: [1993] EGGS 171. The commoners appealed to the House of Lords. Held The appeal was allowed. 1. Although it was improper for the water board to insist on completing the acquisition of the common rights after the board had abandoned the project to construct the reservoir, such impropriety merely enabled the court, in appropriate circumstances, to set aside the transaction. Given the great lapse of time and the acquisition of the land by third parties, who had no notice of the impropriety, it was not just or appropriate to set aside the acquisition of the common rights. 2. Section 36 of the Commons Act 1876 expressly provided that no part of the land could be enclosed “without the sanction of Parliament subsequently obtained”. A public right of access created for the specific purpose of ensuring access to an open space for the benefit of the public of the neighborhood as here was not extinguished save by clear words or inescapable implication. 3. There was nothing in the Act of 1968 which either expressly or by necessary implication led to the conclusion that it was the intention of Parliament to extinguish the public rights of access and (despite section 36 of the Act of 1876) authorize enclosure whether the authorized works were ever constructed. 4. Since the works had never been, and could not now be, constructed the public rights of access to the land conferred by the Commons Regulation (Coity Wallia) Provisional Order Confirmation Act 1919 still existed. Moreover, the prohibition on the enclosure of the land contained in section 36 of the Act of 1876 remained in force. The land, formerly waste of the manor, therefore was bound to remain open. It was “common land” within section 22(1)(b) of the Commons Registration Act 1965 and was properly registered as such under the Act. Sheila Cameron QC and Frank Hinks (instructed by Blake Lapthorn, agents for Edward Harris & Son, of Swansea) appeared for the commoners; Elizabeth Appleby QC and Robin Campbell (instructed by Sharpe Pritchard) appeared for Ogwr Borough Council; Bridgend Golf Club Ltd and Mid Glamorgan County Council did not appear and were not represented.