Paul Rushmer & Ors v Central Bedfordshire Council

The High Court’s power to intervene in a commons register is confined by the statutory scheme. It cannot correct or clarify an entry where the matter constitutes a mistake within Commons Act 2006 section 19, except within the limited circumstances provided by that Act and Commons Registration Act 1965 section 14. Such matters belong to the commons registration authority, subject where available to judicial review.

The court may nevertheless determine what documents constitute the authentic register, where the issue is whether the authority’s records reflect the decision originally made. A declaration may also be granted where private property rights are directly affected and the declaratory jurisdiction provides the most effective means of resolving the dispute. A statutory reference to a common may be interpreted on an updating basis, so that a historic scheme follows the legally recognised boundaries of the common as they change over time.

The claimants owned adjoining properties near Studham Common. They sought declarations concerning the validity and contents of the commons register, the extent of Studham Common, the relationship between the common and their properties, and the extent of the Scheme for the Regulation and Management of Studham Common 1911. They also sought rectification under section 14 of the Commons Registration Act 1965, if necessary.

The council applied to strike out the claim under CPR 3.4, arguing that the High Court lacked jurisdiction to challenge the conclusiveness of the register and that any correction or clarification had to proceed under Commons Act 2006 section 19 or by judicial review. The central issues were whether the court could identify the authentic register documents, clarify or correct the registered boundaries, and determine how the 1911 Scheme applied to the legally recognised common.

1. Strike-out application dismissed in part. The court would determine the authentic contents of the register concerning Studham Common, but would not correct or clarify the registered boundaries through the ordinary claim.
2. Under sections 10 and 14 of the Commons Registration Act 1965, supplemented by section 19 of the Commons Act 2006, the court has only limited power to correct a final register. Correction of an entry, including clarification of an unclear or ambiguous description within section 19(3), is for the commons registration authority. The proper challenge to an authority’s decision, where available, is by judicial review (paras [24]-[34], [45]-[50]).
3. The court may identify the authentic register where the issue is whether the documents held by the authority record the decision originally made. That inquiry does not alter the register or displace the authority’s decision. Applying the principles governing declaratory relief in Rolls-Royce plc v Unite the Union, a declaration was appropriate because there was a real dispute, the parties were affected, and it was the most effective means of resolving the uncertainty (paras [36]-[44]).
4. The rule in O’Reilly v Mackman did not require strike-out. The claim concerned the true contents of the register rather than a challenge to a public authority’s decision, involved private property rights, and was appropriately determined in the High Court. The late jurisdictional objection also favoured resolution under the overriding objective (paras [51]-[58]).
5. The photocopied register entry and the December 1967 map were declared to comprise the register concerning Studham Common. The evidence showed that the December map complied with the Commons Registration (General) Regulations 1966, whereas the October 1967 map lacked essential features and did not properly delineate the common. The court declined to declare that the incomplete 1983 map formed part of the register (paras [90]-[102]).
6. The term “common” in the Commons Act 1899 was subject to the updating principle and the presumption against absurdity. The 1911 Scheme therefore applied to Studham Common as legally recognised from time to time, including boundaries subsequently fixed under the commons registration legislation (paras [103]-[129]).
7. The parties were directed to agree a suitable order, with consequential matters including costs to be addressed at a further hearing (para [130]).

First-instance decision. No earlier appellate decision is stated in the judgment.