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Session 2000-01
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Judgments - Bettison and Others v. Langton and Others

HOUSE OF LORDS

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Steyn Lord Hutton Lord Scott of Foscote

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

BETTISON AND OTHERS

(RESPONDENTS)

v.

LANGTON AND OTHERS

(APPELLANTS)

ON 17 MAY 2001

[2001] UKHL 24

LORD SLYNN OF HADLEY

My Lords,

    1. I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Scott of Foscote. On the basis of the material to which he refers and which was considered by Robert Walker LJ it seems to me to be well established that at Common Law appurtenant rights of grazing for a fixed number of animals were severable and that section 187 of the Law of Property Act 1925 did not change that position. Despite the opinions expressed in the Report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462) I also consider it clear that the effect of section 15 of the Commons Registration Act 1965 was that on registration, rights of grazing formally determined by levancy and couchancy became rights to graze a fixed number of animals. There is nothing in the section which requires or leads to the conclusion that the general rule is not to apply. The grazing rights in the present case thus became severable. Accordingly, for the reasons given by Lord Scott I, too, would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    2. This appeal concerns the commons of England and Wales. Despite the continuing growth of towns and cities, ancient common lands still cover about 1.4 million acres, over 4 percent of the total area of England and Wales. Some commons, such as Clapham Common, are now within built up areas. But the great bulk of common lands are in the countryside, notably the extensive hill commons in the north and south west of England and in Wales.

    3. For centuries many farmers whose lands adjoin the local common have enjoyed the right to put out their sheep and cattle to graze on the common. The animals wintered on the farms, but in the summer months they were let out to graze on the open common. This appeal raises an important point concerning the ownership of these grazing rights. These rights have feudal origins, but this should not be allowed to obscure their continuing importance. What happens on the commons is of importance to the local farmers. What happens on the commons is also of wider importance. Commons have considerable amenity value. Increasingly, what happens on the commons is a matter of general public concern. They are the last reserve of uncommitted land in England and Wales. They are an important national resource.

    4. Traditionally grazing rights are an adjunct of the lands of the farmers who own the rights. The rights had their origin in actual or presumed grant, usually the latter. The law assumes that long continued use must have had a lawful origin. The number of animals that a farmer was entitled to depasture on the common was limited to the animals his land could support through the winter. The language was picturesque: the right was limited to the number of beasts 'levant and couchant' ('getting up and lying down') on the farmer's holding in the winter months. These rights could be passed on or sold, but only with the farm to which they were appurtenant. They were to be enjoyed by the occupier for the time being. They could not be sold separately, or 'severed', from the farm.

    5. Most grazing rights were governed by the principle of levancy and couchancy, but not always. Sometimes a grazing right might be for a fixed number of animals. Then the right, known as a right in gross, could be sold separately. Historically, grazing rights in gross are rare.

    6. The respondents' case is that all this was changed by the Commons Registration Act 1965. Under the Act the number of animals a farmer may pasture on the common in exercise of grazing rights is the number stated in the commons register. Levancy and couchancy, as a principle for quantifying a grazing right, has been overtaken. Accordingly, it is said, the Act has had the effect of transforming all grazing rights into rights in gross, which can be sold separately from the land to which they have been annexed for centuries. It is not suggested that in 1965 anyone anticipated or intended that the registration provisions should have this far-reaching effect. But, so it is said, as night follows day, that is the inevitable consequence of section 15 of the Act. Whether Parliament intended that result or not, that is what Parliament has done.

    7. My Lords, arguments of this nature are to be approached with circumspection. An Act of Parliament is to be interpreted having regard to its purpose. The court is looking for the intention of Parliament expressed in the language under consideration. The intention of Parliament is to be judged objectively. It is the intention which the court imputes to Parliament in using the words in question. If the statutory language is fairly susceptible of a meaning which gives effect to the parliamentary intention, the court will prefer that meaning.

The object of the Act

    8. So the starting point is to identify the purpose of the Commons Registration Act 1965. This was important but limited. It is well summarised in Megarry and Wade, The Law of Real Property, 6th ed (2000), p 1144. In 1965 there were many uncertainties about what land was subject to rights of common and what rights of common existed over these lands. The object of the Act was 'to lay a foundation for further legislation to govern the management and improvement of common land'. To this end the Act enacted provisions for ascertaining what rights were claimed to be still in existence, and for extinguishing others. The provisions of the Act are to be interpreted with this in mind.

The background to the Act

    9. Next, the background to the legislation. The Act followed the report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462). The Royal Commission was chaired by Sir Ivor Jennings QC. The overriding conclusion of the report was that common land ought to be preserved in the public interest. The commission recommended that certain local authorities should register claims that land is common land and claims by commoners to rights over common land. Any rights not registered should be held to have lapsed.

    10. Paragraphs 271 to 275 of the report dealt specifically with grazing rights or, more formally, rights of common of pasture. The report noted that, under the commission's recommendations, a right of common of pasture would be registered either as attached to a holding (appurtenant) or, if unattached, in the name of the owner as a right in gross. A claimant should be free to register his grazing rights as rights in gross provided he could produce evidence that that is what they were. The onus of proof would be on him. Otherwise rights of pasture would be registered as appurtenant to the land to which they were attached. Changes in the ownership of rights in gross would be registrable, but changes in the ownership of a holding to which grazing rights were appurtenant would not. Particulars of rights appurtenant would only be altered in the register if the holding were split. Otherwise, barring compulsory acquisition, or the purchase of rights within an approved scheme of management, 'the rights would remain inseparable from the original holding': see paragraph 273. The commission added:

    'The permanent registration of common rights attached to holdings as rights appurtenant should avert any danger of rights subsequently being alienated.'

    11. Earlier in its report, at paragraphs 30-31, the commission criticised levancy and couchancy as one of the old customs and practices which, if not totally forgotten, were often an indifferent guide in modern circumstances and tended to become discredited. So it was small wonder if each commoner shifted for himself and crowded as many sheep as he dared on the upland sheepwalk. As a result the sward was becomingly increasingly impoverished through overgrazing. But if levancy and couchancy was not a satisfactory way to determine the extent of registered grazing rights, some other method had to be found. After considering possible alternatives, the commission recommended that each claimant should be free to claim those rights of pasture which he believed he was entitled to: see paragraph 274. A procedure was recommended for making and resolving objections which other commoners or the owner of the soil might have.

    12. Thus, the commission made abundantly plain that, although it was recommending that grazing rights appurtenant to a farm should be quantified as fixed numbers, that was not intended to make the rights alienable from the farm. The commission envisaged that registration as an appurtenant right would suffice to maintain the appurtenant character of the right even though the right would be quantified. This intention was repeated in the commission's summary of its recommendations, in paragraph 405(5):

    'A right of common of pasture should be registered as appurtenant (i.e. attached) to the holding(s) of the claimant or, on proof by the claimant, as in gross (i.e. unattached to a holding). … Rights appurtenant should not be severable from land to which they appertain, unless extinguished or transferred within an approved scheme of management and improvement.' (My emphasis.)

The wording of the Act

    13. I turn now to the Act. I can say at once that one looks in vain for any indication that Parliament intended to depart from the commission's recommendations relating to grazing rights. Indeed, a striking feature of the Act is that it implements all the relevant recommendations in every particular. Section 1 provides for the registration of rights of common over common land. The section further provides that after the end of a prescribed period no rights of common shall be exercisable over common land unless they are registered. Section 4 provides that objections to registrations shall be referred to a Commons Commissioner, and section 5 makes provision for the disposal of disputed items which are so referred. Section 7 makes provision for the finality of undisputed registrations. Section 19 provides that the minister may make regulations prescribing, among other matters, the form of the registers and of applications for registration.

    14. In exercise of this power the minister made the Commons Registration (General) Regulations 1966 (S I 1966/1471). I should refer briefly to these regulations. Regulation 4(3) provided that the rights section of each register should contain particulars of the rights of common registered as exercisable over the common in question. The particulars were to include descriptions of the land, if any, to which the rights were attached. The prescribed form, form 3, contained a corresponding column, headed: 'Particulars of the land (if any) to which the right is attached'. Regulation 29(1) made provision for the amendment of registered rights. Where a registered right was apportioned, varied, extinguished or released or, being or having become a right in gross, was transferred, application might be made for the amendment of the register. This regulation made no provision for amendment of the register when the ownership of the holding to which a right was attached changed hands. This was not an oversight. Note 1 of the notes to the prescribed form, form 19, stated:

    'With regard to attached rights, it is important to remember that, so long as the land to which a right is attached remains a single holding, no case for amendment of the register arises, no matter how many times the holding may be sold or otherwise transferred, unless and until the right is apportioned. On the other hand, every transfer of the freehold ownership of a right held in gross should be recorded in the register.'

The reason for this distinction is not far to seek. The view was taken that in the case of rights which are attached to land, the register does not need to be amended because the ownership of the right will necessarily go hand in hand with the ownership of the land which is particularised on the register. This is in accordance with the Royal Commission's recommendation.

Section 15

    15. In section 15 of the Act Parliament made provision for quantifying grazing rights. The sidenote reads 'Quantification of certain grazing rights'. Here also the statutory provisions conform wholly with the recommendations of the Royal Commission. Section 15(1) provides:

    'Where a right of common consists of or includes a right, not limited by number, to graze animals or animals of any class, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals, or animals of that class, than a definite number.'

Thus, a grazing right is to be deemed ('be treated as') exercisable in relation to a definite number of animals 'for the purposes of registration under this Act'. Section 15(2) provides that an application for registration of such a right shall state the number of animals to be entered on the register. These two subsections are, necessarily, to be understood in the context of the whole Act. As already noted, an applicant who owns a right appurtenant to a holding must register it as such. These two subsections envisage that an applicant who owns a grazing right which is appurtenant to a holding, and who applies to register the right as attached to the holding, will himself specify the number of animals in respect of which the right is exercisable.

    16. Section 15(3) then states the consequence ('accordingly') of the registration when it becomes final:

    'When the registration of such a right has become final the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine.'

Thus, the right which is appurtenant to a holding, and has been registered as such, shall in future be exercisable in relation to the registered number of animals. That was the intended consequence.

    17. In so providing Parliament cannot have intended that the mere fact of quantification should have the further effect of changing the nature of the right, so that what had been an appurtenant right, and registered as such, should automatically become a severable right. It was not intended that, up and down the country, rights which for centuries had been attached to particular farms should now immediately become alienable to the highest bidder who wanted to bring his sheep in lorries from many miles away. That would be a fundamental alteration in the character of these rights. It would go far beyond merely quantifying the right. There is nothing in the Act to suggest that quantification as part of the registration process was intended to make such a fundamental change. Such a change would, indeed, be inconsistent with the scheme of the legislation. The statutory scheme required appurtenant rights to be registered with particulars of the land to which they were attached. That would be pointless if they were alienable as rights in gross. And it would be extremely odd if the very process of registration rendered every appurtenant grazing right severable.

    18. The preferable interpretation of the effect of section 15 is that the only change in a grazing right made by this registration legislation is that, when the registration becomes final, the grazing right is henceforward quantified by reference to the registered number. If, as was usually the case, the right was appurtenant to a particular holding, it would remain appurtenant to that holding as duly registered.

    19. I accept, notwithstanding Mr Chapman's skilful efforts to argue the contrary, that at common law a grazing right for a fixed number was regarded as severable from the holding. On this I agree with the views expressed by Robert Walker LJ in his erudite judgment. But it by no means follows that, when Parliament provides for the quantification of a grazing right which is appurtenant to property, the right must become a right in gross. There is no reason in principle why Parliament should not provide that a grazing right which is appurtenant to a particular farm may remain so appurtenant even though its extent is for the future quantified as a fixed number. A grazing right appurtenant to particular land, but whose extent is quantified by a fixed number, is not incoherent as a legal concept. The rationale underlying the common law principle is that when a grazing right is for a fixed number of animals, it is immaterial to the owner of the waste whether the animals are put on the common in respect of a holding or by a person who owns no land. But in the 1950s the Royal Commission was concerned with wider issues than the position of the owner of the common. The commission envisaged that appurtenant rights should remain appurtenant after quantification by registration. In the 1965 Act Parliament gave effect to the commission's recommendation on this point. The common law principle which governed severability is not apt as a guide in the context of this registration scheme.

    20. This interpretation does not strike at the foundations of the law relating to appurtenant grazing rights. It means only that, unlike quantification by agreement, quantification by registration under the Act does not have the consequence that an appurtenant right becomes severable. It does not have that consequence, because registration is a statutory system, and when establishing this system Parliament did not intend that registration should have this consequence. The Act is to be construed accordingly.

    21. Nor does this construction of the Act give rise to practical difficulties. A grazing right which was appurtenant to a holding before 1965 was required to be registered as an appurtenant right. That is how it is recorded in the commons register. There is no scope for future uncertainty.

    22. I am fortified in the conclusion I have reached by noting that recent publications concerned with the future of commons speak with one voice in drawing attention to the undesirable effects of grazing rights being severed from their traditional holdings: see, for instance, the Good Practice Guide on Managing the Use of Common Land, published by the Department of the Environment, Transport and the Regions (June 1998). Severance of grazing rights from the associated holdings off the common can reduce the long term viability of these holdings. It can also make co-operative grazing management more difficult. Needless to say, the soundness or otherwise of the points raised in these publications is not a matter for this House acting in its judicial capacity. But these publications do underline the public importance of the question whether commons grazing rights should remain attached to the local farms. More directly in point is a comment in a research report made to the Department in July 1998 by the Countryside and Community Research Unit of the Cheltenham and Gloucester College of Higher Education, in paragraph 7.9:

    'severance detaches the rights from the land forever and this was clearly not the intention .. when the registers were created in 1965-70.'

    23. I agree. I would allow this appeal. The argument based on section 15 appears to have been presented differently in the Court of Appeal, because Robert Walker LJ did not deal specifically with the point I have discussed above. I would hold that the grazing rights over Tawna Down attached to Sina Farm, Mount, near Bodmin, Cornwall, remained so attached after they were registered as a right to graze 10 cattle and 30 sheep. Mrs Langton's purported conveyance of these grazing rights alone to the respondents Mr and Mrs Bettison in April 1987 was ineffectual.

LORD STEYN

My Lords,

    24. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scott of Foscote. For the reasons he has given I would also dismiss the appeal.

LORD HUTTON

My Lords,

    25. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Scott of Foscote. The arguments in support of the conclusion that the appeal should be allowed are powerfully set out in the speech of Lord Nicholls. However, on balance, I have reached the conclusion that the appeal should be dismissed for the reasons set out in the speech of Lord Scott.

    26. I have formed this view because it is clear from the authorities cited by Lord Scott that the common law recognised a right appurtenant to dominant land to pasture a fixed number of animals on common land and that such a right could be severed from the dominant land and alienated. As this was the rule of common law I agree with the opinion of Lord Scott that as section 15 of the Commons Registration Act 1965 transformed a levant and couchant grazing right into a right to graze the fixed number of animals noted in the register, it follows that in accordance with the common law such a right can be severed from the dominant land and alienated to a third party.

    27. Whatever may have been the intention with which the Royal Commission made the recommendation upon which section 15 is based, I do not consider that section 15 can be read as operating to restrict the common law rule that the right to pasture a fixed number of animals on common land can be severed from the dominant land. To come to this conclusion is not to hold that Parliament in enacting section 15 intended that the fact of quantification of the number of animals which the dominant owner could graze should have the effect that a right which was not severable should become severable— rather it is to hold that the words of section 15 cannot be read as restricting the pre-existing and well established common law rule. Accordingly I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    28. Rights of common appurtenant are rights of common which are attached to land. They may be acquired either by grant or by prescription. The right of common with which this case is concerned is a right of pasturage, that is to say, a right to graze beasts on a common. The common in question is Tawna Down on the edge of Bodwin Moor in Cornwall. It is not in dispute that Tawna Down is a common and that rights of common of pasturage are exercisable over it. Nor is it in dispute that Mrs Langton, who purchased Sina Farm, near Bodmin, on 16 September 1985, thereby became proprietor of the right to graze 10 head of cattle and 30 sheep over Tawna Down. Her right of pasturage was appurtenant to Sina Farm.

    29. Mrs Langton's right of pasturage had begun its life, long before she had become owner of Sina Farm, as a right for the owners of Sina Farm to graze on Tawna Down the animals levant and couchant on the farm. In Gadsden's The Law of Commons (1988) the following explanation of levancy and couchancy is given:

    "From early days it has been understood that levant and couchant means 'so many of the cattle that the land, to which the common is appurtenant, may maintain in the winter', that is to say, 'if my land to which I claim common belonging, can yield me stover (feed) to find a hundred cattell in winter, then I shall have common in summer for a hundred cattell'" (p 101, para 3.128)

    30. And in Carr v Lambert (1866) 1 Ex 168, 175 levancy and couchancy was described as a "measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits".

    31. The Commons Registration Act 1965 required all commons and all rights over commons to be registered. Tawna Down was duly registered as a common. The registration became final on 17 December 1971. The right of pasturage appurtenant to Sina Farm, too, was duly registered. The application for registration and the registration itself had to comply, and did comply, with section 15(1) and (2) of the 1965 Act. I shall have more to say later about sub-section (3) but it is convenient at this point to set out the section in full.

    "15 (1) Where a right of common consists of or includes a right, not limited by number, to graze animals or animals of any class, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals, or animals of that class, than a definite number.

    (2) Any application for the registration of such a right shall state the number of animals to be entered in the register or, as the case may be, the numbers of animals of different classes to be so entered.

    (3) When the registration of such a right has become final the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine."

    32. The pasturage right appurtenant to Sina Farm, being a right limited by levancy and couchancy, was "a right, not limited by number". So the registration application had to state the number of animals for which the right was claimed (subsection(2)), and the registration of the right had to treat the right as exercisable in relation to a definite number of animals (subsection(1)).

    33. The applicants for registration were Mr and Mrs May, predecessors in title of Mrs Langton. The registration recorded their right to graze 10 head of cattle and 30 sheep over Tawna Down and that the right was attached to Sina Farm. Accordingly, the right to which Mrs Langton became entitled, although originally limited by levancy and couchancy, had become a right "exercisable in relation to animals not exceeding…." 10 head of cattle and 30 sheep (subsection(3)).

    34. By a conveyance dated 6 April 1987 Mrs Langton sold to Mr and Mrs Bettison (the respondents to this appeal) her right of pasturage over Tawna Down. She retained the ownership of Sina Farm. In 1988 Mrs Langton mortgaged Sina Farm to Midland bank plc and, by a conveyance dated 22 September 1994, the bank, as mortgagee, sold the bulk of Sina Farm to Mr and Mrs Penter (the appellants).

    35. The appellants contend that it was not in law possible for Mrs Langton to have severed the right of pasturage from the land to which the right was appurtenant. The conveyance of 6 April 1987 was, they contend, ineffective. The right of pasturage remained vested in Mrs Langton and, by virtue of section 62(1) of the Law of Property Act 1925, an appropriately apportioned part of the right of pasturage passed to them under the conveyance of 22 September 1994. So the issue between the parties is whether the conveyance of 6 April 1987 was effective to do what it purported to do, namely, to transfer the Sina Farm right of pasturage to Mr and Mrs Bettison, thereby severing it from the farm and transforming it from a right appurtenant to a right in gross.

 
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