R (on the application of Littlejohns and another) v Devon County Council

Rights of common – Registration – Commons Act 2006 – Claimant applying for judicial review of defendants’ refusal to register right of common – Whether defendants adopting unduly restrictive interpretation of legislation interfering with claimants’ proprietary right under European Convention – Application dismissed The claimants were farmers and landowners in Oakhampton, Devon, who claimed to have rights of common over three parcels of registered common land on Dartmoor. The claimants applied for judicial review of the decision made by the defendant local authority, in its capacity as commons registration authority, refusing their application to register rights of common under the Commons Act 2006. Devon was one of seven pilot areas in which the 2006 Act came into force on 1 October 2008, repealing the Commons Registration Act 1965 in those areas. The sole issue was whether the defendants were correct in deciding that the application ought to be refused because it fell outside the scope of paragraph 2(2)(a) of Schedule 3 to the 2006 Act, which made transitional provision for the registration of unregistered rights of common created after the registers were originally drawn up under the Commons Registration Act 1965. The defendants had concluded, on legal advice, 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. Therefore the claimants had not established that a right of common had been created for the purposes of paragraph 2(2)(a) of Schedule 3. The claimants contended that the defendants had adopted an unduly restrictive interpretation of the legislation which interfered with their proprietary rights, contrary to article 1 of the First Protocol (A1P1) to the European Convention on Human Rights and the Human Rights Act 1998. Held: The application was dismissed. (1) The legislative intention of the 1965 Act was that all common land and rights of common should be registered as conclusive evidence of the matters registered, under section 10. Common land which was not registered would no longer be deemed to be common land. Rights of common which were not registered would not be exercisable thereafter and were extinguished. The wording of section 1(2)(b) “no rights of commons shall be exercisable over any such land unless they are registered” was so broadly expressed that it could not be read as limited to rights which were in existence prior to 31 July 1970. Moreover, the parallel existence of rights which were unregistered would be contrary to the purpose of the 1965 Act. The 1965 Act did not prevent the creation of new rights of common after 31 July 1970, whether by prescription or grant, but it only made provision for new rights in respect of new common land, not existing common land. The exclusion of new rights of common over existing common land was consistent with the aim of producing a conclusive register of common land, and the rights of common which existed over that land, as at 31 July 1970. Parliament did not expect or intend new rights to be registered over existing common land. The Act also intended that any new right of common would have to be registered. Although it did not make registration mandatory, a right of common which was not registered could not be exercised, by virtue of section 1(2)(b): Central Electricity Generating Board v Clwyd County Council [1975] 2 EGLR 104 and Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95 considered. (2) If, contrary to the court’s primary conclusion, new rights of common could arise at common law by grant or prescription over existing common land, as well as over land which was not previously common land, as they could not be registered, they would be extinguished as soon as they came into existence, applying section 1(2)(b). Either the unregistered rights never had legal effect or their legal effect at common law was automatically extinguished by operation of section 1(2)(b). On that analysis, A1P1 was either never engaged, because no propriety rights ever came into existence, or the rights came into existence and were then extinguished, before the Human Rights Act 1998 came into force. (3) The purpose of Schedule 3 to the 2006 Act was to provide a brief window within which the commons register could be updated and corrected by incorporating any registrations which could have been, but were not, made under the 1965 Act. Thereafter, any unregistered rights would be extinguished under paragraph 3, repeating the legislative approach adopted by section 1(2)(b) of the 1965 Act. There was nothing in the 2006 Act to suggest that Parliament had legislated to revive rights of common which were not capable of being registered under the 1965 Act. Parliament had been aware of the possibility that no new rights of common could have arisen over existing common land under the 1965 Act but had made no express provision for registration of that category of rights. It was significant that paragraph 6 of Schedule 3 expressly confirmed the extinguishment of rights under section 1(2)(b) of the 1965 Act, signalling that it was not intended to revive such rights. (4) Whilst the 2006 Act had to be interpreted to give effect to A1P1 so far as possible, the transitional provisions in Schedule 3, enabling corrections to the register, gave sufficient protection to existing rights of common to avoid any breach of A1P1. The claimants’ application had failed because they could not establish that they had acquired rights of common when they applied to register them. Nicholas Le Poidevin QC (instructed by SW Law Solicitors Ltd, of Devon) appeared for the claimants; Stephen Whale (instructed by Devon County Council Legal Services) appeared for the defendants. Eileen O’Grady, barrister   Click here to download the transcript of R (on the application of Littlejohns and another) v Devon County Council