Littlejohns, R (on the application of) v Devon County Council & Anor

The Commons Registration Act 1965 was intended to create a conclusive register of common land and rights of common. Rights not registered within the statutory period could not thereafter be exercised and were extinguished. New rights could arise after that period, but the statutory scheme provided for their registration only where the land itself became newly registrable common land. Unregistered prescriptive rights over existing registered common land therefore either never acquired legal effect or were immediately extinguished. Schedule 3 to the Commons Act 2006 created a limited transitional opportunity to update the registers; it did not revive or validate rights which could not have been registered under the 1965 Act. The subsequent creation of grazing rights by prescription was also excluded by sections 6(1) and 6(2) of the 2006 Act.

The claimants, farmers and landowners in Devon, sought judicial review of Devon County Council’s refusal to amend the commons register under paragraph 2(2)(a) of Schedule 3 to the Commons Act 2006. They claimed prescriptive grazing rights over common land registered under the Commons Registration Act 1965. Their rights had not been registered during the earlier statutory registration period, although grazing continued thereafter. The central issue was whether rights of common could have been created by prescription after 2 January 1970 over land already registered as common land, and whether Schedule 3 permitted their later registration.

1. The claim was dismissed. The Authority’s refusal was correct in law.
2. The Commons Registration Act 1965 was designed to establish a conclusive register of common land and rights of common. Under section 1(2)(b), rights of common which were not registered could not thereafter be exercised. The effect was extinguishment, not merely suspension.
3. The Act did not prevent new rights arising after the registration deadline by grant or prescription. However, section 13 and the Commons Registration (New Land) Regulations 1969 provided for registration of new rights only in relation to land which became newly registrable common land. Regulation 3(2) excluded registration over land already registered under the 1965 Act.
4. The reasoning in Central Electricity Generating Board v Clwyd County Council [1976] 1 WLR 151 supported the conclusion that unregistered rights were extinguished. The reasoning of the House of Lords in Oxfordshire County Council v Oxfordshire City Council [2006] 2 AC 674, particularly the emphasis on the conclusiveness of the register, provided further support, although a possible distinction existed between village greens and rights of common.
5. Even if prescriptive rights had arisen over existing common land, they could not be registered and would therefore have been extinguished under section 1(2)(b). Schedule 3 to the Commons Act 2006 supplied a limited window for correcting the registers; it did not revive rights which had not been capable of registration under the 1965 Act.
6. Sections 6(1) and 6(2) of the 2006 Act prevented the future creation of rights of common by prescription. The claimants could acquire grazing rights only by express grant or enactment. Article 1 of the First Protocol was not breached.