Hall v Moore & Anor

A tenancy of land carrying appurtenant rights of common may pass those rights under section 62 of the Law of Property Act 1925, unless the tenancy expressly reserves them. A general reservation of rights affecting the farm does not naturally reserve rights of common benefiting it where the surrounding language concerns rights burdening the farm.

A non-statutory commons committee cannot waive or suspend individual commoners’ proprietary rights without evidence of express authority or a binding constitutional arrangement. Non-use, failure to attend committee meetings and acceptance of grazing licences do not, without more, establish abandonment, surrender or waiver. A tenant’s rights in land are not merely contractual and cannot be removed unilaterally by the landlord.

Colin Hall, a tenant of Moat House Farm, claimed that the trustees’ registered rights of common over Luckwards Hill passed to him under section 62 of the Law of Property Act 1925. He brought nuisance claims against Shirley Moore and Gerald and Cynthia Harris, whose land formed parts of Luckwards Hill, alleging obstruction of access and enjoyment.

The Worcester County Court tried entitlement to the common rights as a preliminary issue. His Honour Judge Geddes held that the tenancy reserved the rights to the trustees and, alternatively, that they had been waived through agreements made by the Powick Commons Committee. He granted injunctions and costs orders against Mr Hall. The appeals concerned the proper interpretation of the reservation and the committee’s authority to waive the rights.

1. Appeals allowed. The preliminary-issue decision in both actions was set aside. The judge’s orders were to be replaced by further orders to be determined after representations from the parties.

2. A right of common is an incorporeal hereditament in the nature of a profit à prendre and is capable in principle of passing under section 62 of the Law of Property Act 1925. Appurtenant rights of common for grazing fixed numbers of animals can also be severed from the land and become rights in gross, so there was no principled objection to their reservation by the trustees.

3. Wheeldon v Burrows did not require the precise nature of a reserved right to be stated expressly. It required rights to be reserved expressly rather than implied, subject to easements of necessity. The question was therefore one of construction. Read in context, paragraph 4 of the tenancy agreement referred to wayleaves and easements burdening the farm, together with like rights. It did not reserve rights of common which benefited the farm as dominant tenement. The rights of common therefore passed to Mr Hall under section 62.

4. The alternative waiver case also failed. Although the Powick Committee might have had de facto management functions, the evidence did not establish a constitution, express authority from the commoners, or a contractual arrangement binding them. Holding itself out as authorised was insufficient. Part 2 of the Commons Act 2006, including section 31(4), illustrated the distinction between statutory commons councils and an informal committee.

5. The trustees’ possible waiver could not unilaterally deprive a tenant of an interest in land appurtenant to the tenancy. Non-use, non-attendance at meetings and grazing licences did not, without more, amount to abandonment or surrender. Any possible acquiescence or estoppel case had not been pleaded or determined and was irrelevant to the appeals’ disposition.

Lord Justice Toulson and Lord Justice Rix agreed with Lord Justice Rimer.

• Court of Appeal (Civil Division): allowed Mr Hall’s appeals in both actions, set aside the preliminary-issue orders and invited representations on further orders.
• Worcester County Court: His Honour Judge Geddes decided the common-rights issue against Mr Hall, granted injunctions restraining him from entering Luckwards Hill and ordered him to pay costs.