Hall v Moore & Ors

On a renewed application for permission to appeal, the threshold is relatively low: permission may be granted where a ground has a real prospect of success. An express reservation need not list every right separately if its wording, properly construed, covers the right. Whether appurtenant rights of common are rights affecting the dominant land depends on the language and context of the instrument. A purported waiver made by a representative committee may benefit from a presumption of regularity where authority and formalities are not disproved. However, the authority of the committee and the position of individual right-holders may remain arguable. These issues can justify permission without finally determining the substantive appeal.

Colin Hall was the tenant of Moat House Farm, to which registered rights of common over neighbouring Luckwards Hill were attached. He claimed that those rights passed with his tenancy under section 62 of the Law of Property Act 1925 and alleged that the landowners had obstructed their exercise.

After joint trials, His Honour Judge Geddes granted injunctions restraining Mr Hall from entering Luckwards Hill, declared that he had no common rights and ordered him to pay costs. Arden LJ refused permission to appeal on the papers. On renewal, the central questions were whether the lease reserved the common rights and whether earlier agreements waiving the rights had been made with proper authority.

Lord Justice Rimer granted the renewed application for permission to appeal on two grounds, while refusing permission on all other grounds. The order was not a final determination of the substantive entitlement to common rights.

1. Permission threshold. The relevant threshold was whether the proposed grounds had a real prospect of success. That was a relatively low threshold. The court therefore had to decide whether the proposed points were properly arguable, rather than finally determine the underlying rights.
2. Construction of the lease. Section 62 of the Law of Property Act 1925 was relied on as the route by which the rights might have passed with the tenancy. The court explained that Wheeldon v Burrows (1879) 12 Ch.D. 31 did not require every reserved right to be individually identified. It required reservations to be expressed rather than ordinarily implied. If the common rights were rights affecting the farm, the general wording in paragraph 4 of the second schedule might have reserved them. However, the ordinary conveyancing meaning of affecting land, and the reference to rents and moneys payable, suggested that the clause might instead concern rights burdening the farm. That construction was therefore arguable.
3. Waiver agreements. The court considered that a presumption of regularity could apply to the 1984 agreement made by the Commons Committee on behalf of the commoners. In the absence of contrary evidence, the burden lay on Mr Hall to establish its invalidity. Nevertheless, the evidence concerning the committee’s authority, the consent of individual commoners and the position of Mr Hall’s father raised a real question about whether the agreement had been entered into with due authority. Its validity could therefore properly be argued on appeal.

Permission was granted in respect of the construction of paragraph 4 and the validity and authority of the waiver arrangements. Permission on the remaining grounds was refused.

• Court of Appeal (Civil Division) — On 10 July 2008, Lord Justice Rimer granted permission to appeal on two grounds and refused permission on all others: [2008] EWCA Civ 965.
• Court of Appeal (on the papers) — Arden LJ refused permission to appeal on 23 May 2008, considering that the appeals had no real prospect of success.
• Worcester County Court — After joint trials, His Honour Judge Geddes made orders on 22 November 2007 granting injunctions against Mr Hall, declaring that he had no common rights over Luckwards Hill and awarding costs to the defendants.