Littlejohns & Anor v Devon County Council & Anor

The Commons Registration Act 1965 established a definitive register of common land and rights of common. After the statutory cut-off, an unregistered right of common cannot be exercised over land registered as common land. A new right cannot be acquired by prescription where the activity relied on is prohibited by statute. The registration scheme did not provide a route for registering new rights over land already registered as common. The Commons Act 2006 did not revive rights extinguished under the 1965 Act. The appeal was therefore dismissed.

The appellants challenged Devon County Council’s refusal to register rights to graze cattle and sheep over three areas of common land. The land had been registered under the Commons Registration Act 1965 in 1967 and 1968. The appellants relied on continuous grazing from 1970 until 2001 and sought registration under schedule 3 to the Commons Act 2006.

Lang J dismissed their judicial review claim on 24 March 2015. The appeal concerned whether rights of common could be created by express grant or prescription after 2 January 1970 over land registered under the 1965 Act, and whether such rights could be registered under the 2006 Act.

The appeal was dismissed by Tomlinson LJ and Lewison LJ. The Chancellor of the High Court dissented.

1. Purpose and effect of the 1965 Act. The Act was intended to establish a definitive record of registered common land and rights of common. After 31 July 1970, section 1(2)(b) provided that unregistered rights of common could not be exercised over land registered as common land. The expression such land referred to land registered under the Act.
2. Future rights. Section 13 and regulation 3(2) of the Commons Registration (New Land) Regulations 1969 meant that a newly created right could not be registered over land already registered as common land. The statutory scheme therefore prevented a new right of common from being acquired by prescription over such land. The fact that section 6 of the Commons Act 2006 used more explicit language did not alter the proper construction of the 1965 Act.
3. Statutory prohibition. A profit or easement cannot be acquired by relying on conduct prohibited by a public statute. The principles applied in Neaverson v Peterborough RDC [1902] 1 Ch 557, Bakewell Management Ltd v Brandwood [2004] UKHL 14 and R (Newhaven Port & Properties Ltd) v East Sussex CC [2015] UKSC 7 supported that conclusion. The doctrine of lost modern grant could not circumvent section 1(2)(b).
4. Scope of the conclusion. The owner of a registered common was not prevented from granting an analogous leasehold right or licence falling outside the statutory definition of a right of common. That qualification did not assist the appellants, who claimed freehold rights of common by prescription.

The registration authority’s refusal was upheld. No separate issue under Article 1 of the First Protocol arose.

• Court of Appeal (Civil Division): appeal dismissed by Tomlinson LJ and Lewison LJ, with the Chancellor dissenting, [2016] EWCA Civ 446.
• High Court of Justice, Queen’s Bench Division, Planning Court: Lang J dismissed the judicial review claim on 24 March 2015.