ADM Milling Ltd v Tewkesbury Town Council & Ors

Land burdened by a right of sole vesture or sole pasturage may constitute a “common” for the purposes of section 193 of the Law of Property Act 1925, even though the right is not a right of common in the strict sense. “Commonable rights” in that section must be construed consistently with the land covered by the section.

Section 194 has a narrower scope and applies only to land subject to rights of common strictly so called. Ministerial consent under section 194 necessarily suspends or extinguishes common rights, and corresponding public access rights under section 193, to the extent that they are inconsistent with the authorised works. Rights validly extinguished before 1 January 1926 prevent sections 193 and 194 from applying.

ADM Milling Ltd sought declarations concerning public access rights and related grazing rights over land forming part of Severn Ham, Tewkesbury. The principal issue was whether rights created by a private Inclosure Act of 1808 amounted to rights of sole vesture and whether the land therefore fell within section 193 of the Law of Property Act 1925.

The claim also raised the separate scope of section 194, the effect of ministerial consent to works on common land, and whether rights had been extinguished before 1 January 1926 by release, unity of ownership or approvement. The court declined to make declarations concerning the Town Council’s land and determined the position of the land in ADM’s registered title.

1. Nature of the 1808 right. The right created by the 1808 Act was an exclusive right to the aftermath, properly classified as a right of sole vesture or sole pasturage rather than a right of common in the strict sense. It nevertheless carried possessory incidents, including the ability to sue in trespass.
2. Section 193. The word “common” in section 193(1) of the Law of Property Act 1925 includes land subject to a right of sole vesture. The statutory language reflected contemporary loose usage, the practical similarity between sole vesture and common rights, and Parliament’s purpose of promoting public access to open spaces. “Commonable rights” in the provisos means the rights which caused the land to fall within section 193.
3. Section 194. Section 194(3) is differently worded and applies only to land subject to rights of common properly so called. It therefore did not apply to Severn Ham. Nevertheless, ministerial consent under section 194 necessarily suspends or extinguishes common rights to the extent inconsistent with the authorised building or works. Public access rights under section 193 cease to the same extent.
4. Extinguishment before 1926. A post-1925 extinguishment at common law does not itself disapply section 193. Before 1 January 1926, however, an implied release could be inferred from permanent works wholly inconsistent with grazing or mowing, together with prolonged acquiescence. The character of the right and the permanence of the obstruction were material. Unity of ownership could also extinguish the right.
5. Application and order. The Quay, bridge, mill buildings and certain enclosed yards were never subject to the 1808 right or had been released before 1926. Section 193 therefore did not apply to those parts. The court refused the declaration sought in relation to the remainder of ADM’s land, made no declaration concerning the Town Council’s land, and directed counsel to draw a minute of order.