Dance v Savery & Ors

An omission from a common-land register of a reference to other register units does not conclusively establish that a quantified grazing right is independent. Under the Commons Registration Act 1965, the registered number is an upper limit. Existing constraints on the exercise of the right, including a constraint arising because the right is split across areas, may remain effective.

Section 18(5) of the Commons Act 2006 preserves unregistered constraints and is not confined to purely local customary restrictions. The court may determine the true area of a split right from the relevant historical material. It is not confined to the registration application.

The claimant held registered grazing rights connected with Dockwell Farm over three adjoining register units: Brent Moor Area A (CL 161), Dean Moor (CL 162), and the Forest of Dartmoor (CL 164). The entry for CL 161 recorded a right to graze specified livestock over Area A, but did not say that the right was split.

Kitchin J declared that the right was limited by a single maximum applicable across all three units. The claimant appealed, contending first that the register conclusively recorded an independent right and, alternatively, that any split was only with CL 164. The central questions were the conclusiveness of the register and the proper identification of the areas across which the grazing right was split.

Disposition

1. The court allowed the appeal in part. Etherton LJ held, with whom Tomlinson and Hughes LJJ agreed, that the grazing right in entry 108 for CL 161 was split with CL 164, but not with CL 162. The High Court declaration was varied accordingly.

2. The absence of a cross-reference in the rights section of CL 161 did not conclusively establish a separate and cumulative right. Neither the Commons Registration Act 1965 nor the Commons Registration (General) Regulations 1966 required every entry to identify every other register unit over which the same right might be exercisable. The requirement to identify the whole claimed area in an application was administrative and did not create such an implied requirement for the register.

3. Section 15 made the registered number of animals an upper limit. It did not give the commoner an unqualified entitlement to graze that number in every circumstance. A split right could therefore constrain the number grazeable across connected areas even where the constraint was not recorded.

4. Section 18(5) of the Commons Act 2006 preserved constraints not appearing in the register. Its wording was not confined to the customary examples in the Explanatory Notes. Nor did the requirement in section 3(4)(a) to register the nature of the right require registration of every limitation on its exercise.

5. A cross-reference to another register unit could not itself create rights over that other unit. Conversely, a final entry expressly recording a split right could not be used to assert a greater right than registered. Corpus Christi College, Oxford v Gloucestershire County Council [1983] 1 QB 360 and Bettison v Langton [2001] UKHL 24 did not address the issue of an unrecorded split right.

6. On the historical findings of the Commons Commissioner, Area A formed part of the Forest and the right over it derived from the venville right confirmed for CL 164. The CL 162 right had a distinct origin. The court was not confined to the wording of the application when determining the actual scope of the split right.

• Court of Appeal (Civil Division) — allowed the appeal in part and varied the declaration: [2011] EWCA Civ 1250.

• High Court of Justice, Chancery Division, Bristol District Registry — Kitchin J declared on 17 January 2011 that the CL 161 right was split across CL 161, CL 162 and CL 164.