Dance v Savery & Ors

A registered right of common relating to one register unit does not confer rights over another unit merely because the register entry refers to that other land. Rights must be registered against each relevant unit. A registered numerical limit is an upper limit and does not necessarily create an unqualified right to graze that number of animals. Customary restraints and limitations inherent in a split right may continue to govern exercise of the right. The Commons Act 2006 preserved, rather than enlarged, rights existing under the Commons Registration Act 1965.

The claimant challenged the interpretation of entry 108 in the register for Brent Moor Common. The entry recorded a right to graze 56 bullocks or ponies and 224 sheep on part A of Brent Moor. The defendants contended that the right was split between Brent Moor, Dean Moor and the Forest of Dartmoor, and could not be exercised independently on each parcel.

The issue was whether entry 108 created a standalone right over part A or recorded a right whose numerical limit applied across the three register units.

1. The claim was dismissed in substance. Entry 108 did not confer an absolute and independent right to graze the defined livestock on part A of Brent Moor.

2. Under the Commons Registration Act 1965, the registration scheme was structured around self-contained register units. A reference in an entry for one unit to land in another unit was surplusage and could not confer a right over that other unit. A right over the other unit had to be separately registered against it.

3. The court accepted the Commissioners’ approach to split grazing rights. Section 15 supplied an upper numerical limit, but did not necessarily remove customary restraints or limitations arising because the right was split between units. The conclusiveness of the register did not mean that the registered number could be grazed in all circumstances.

4. Bettinson v Langton [2001] UKHL 24, [2002] 1 AC 27 concerned the effect of section 15 on levancy and couchancy and the severance of grazing rights. It did not decide the distinct issue of customary restrictions or split rights, and did not require the contrary conclusion.

5. The Commons Act 2006 did not enlarge rights existing at its commencement. Section 18 preserved constraints on the exercise of registered rights even where those constraints did not appear in the register. Entry 108 therefore meant that the claimant could graze the defined livestock on part A only so far as he was not already grazing the same livestock over CL 162 or CL 164.

Not stated in the judgment.