Hall v Harris & Ors

Registration of a right of common does not necessarily exclude an unstated customary restriction on its exercise. Such a restriction may be proved by evidence, and the party asserting it bears the burden. A grazing right permits only the taking of grass by animals’ mouths, but carries ancillary rights reasonably necessary for their care and management. Vehicle use is permitted where necessary, rather than merely convenient, and with minimum interference. Necessary removal of noxious or injurious weeds may also be ancillary. Fencing is lawful only if commoners retain reasonable access and can exercise their rights conveniently and sufficiently. A trespasser is liable at least for nominal damages, while further loss requires proof.

Mr Hall, the tenant of a farm adjoining Luckwards Hill, claimed registered rights of common over the land. A preliminary issue was initially decided against him, but an earlier Court of Appeal decision held that the rights passed with his tenancy and remitted the claims for determination of their precise scope.

After trial, the County Court held that the right was exercisable every third year, restricted vehicle use and removal of vegetation, regulated access and fencing, and awarded the landowners nominal damages for the removal of part of a hay crop. Mr Hall appealed on the scope of the grazing right, ancillary rights and access. The landowners cross-appealed against the amount of damages.

Lord Justice Kitchin gave the judgment, with Lord Justices Richards and Maurice Kay agreeing. The appeal was allowed to the limited extent of substituting revised declarations; otherwise the appeal and the cross-appeal were dismissed.

1. Temporal limitation. The register was not conclusive as to unstated constraints on the exercise of a right of common. Applying Dance v Savery [2011] EWCA Civ 1250, the court accepted that the party asserting a temporal restriction bore the burden of proving it. The evidence, including the customary rules and historical farming practice, justified the finding that the right was exercisable every third year, with 2006 being a commonable year.
2. Ancillary rights. Following White v Taylor [1969] 1 Ch 160 and Besley v John [2003] EWCA Civ 1737, the right of pasture included whatever was reasonably necessary for the care and management of lawfully grazing animals. Vehicle access was therefore permitted where necessary, and not merely convenient, including to remove a sick or dead animal or to provide water in drought conditions. The revised declaration appropriately protected the landowners against unnecessary interference.
3. Vegetation. The right of pasture remained confined to taking grass by the mouths of the animals. It did not authorise cutting and removing hay or bringing feed onto the common. As an ancillary right, however, the commoner could remove or destroy noxious or injurious weeds where reasonably necessary to prevent harm to grazing animals, subject to prior written notice and minimum interference.
4. Access and fencing. The relevant question was whether commoners retained reasonable access and could conveniently and sufficiently exercise their rights, as discussed in National Trust v Ashbrook [1997] 4 AER 76. The court accepted a declaration preserving access through gates B and C, access from the track, and two gates between the respondents’ portions. It declined to determine finally the effect of section 38 of the Commons Act 2006 or section 194 of the Law of Property Act 1925.
5. Damages. Mr Hall had trespassed by entering with machinery to cut and remove hay. The landowners were entitled to nominal damages, but had failed to prove any greater loss. The cross-appeal for £1,200 was therefore dismissed.

• Court of Appeal (Civil Division) — The present appeal was allowed only to substitute revised declarations concerning vehicle use, weed removal and access. The remainder of the appeal and the cross-appeal were dismissed.
• Worcester County Court — His Honour Judge Pearce-Higgins QC, after trial, handed down judgment on 4 April 2011. He found that the grazing right operated every third year, imposed ancillary restrictions, regulated fencing and access, and awarded nominal damages.
• Court of Appeal (Civil Division) — On 18 March 2009, the court allowed Mr Hall’s earlier appeal, holding that the rights of common attached to the farm passed under his tenancy and remitting the claims.
• Worcester County Court — His Honour Judge Geddes had decided the preliminary issue on 22 November 2007 against Mr Hall, finding that no rights passed under the tenancy and that any rights had been waived.