Maureen Constance Comer, R (on the application of) v Hampshire County Council

A commons registration authority cannot accept a fresh application under the Commons Registration Act 1965 after the statutory machinery and time limit have expired. The repeal of the former application provision cannot be overcome by reading words into the Act. The Commons Act 2006 created a limited corrective route for specified areas, but its partial commencement did not confer that route on Hampshire. Land found to be subject to rights of common cannot also qualify as manorial waste under the mutually exclusive limbs of the 1965 Act. Procedural unfairness does not justify relief where the result was highly likely to have been the same. Apparent bias is assessed by reference to the fair-minded and informed observer considering the whole circumstances.

The claimant challenged Hampshire County Council’s refusal to determine an application concerning 80 acres of Broxhead Common. The application sought registration under sections 1 to 3 of the Commons Registration Act 1965, relying on later legal developments concerning manorial waste and the Commons Act 2006.

The claim concerned jurisdiction, whether the land could qualify as waste land of a manor under section 22(1)(b) of the 1965 Act, and whether the Council acted unfairly or with apparent bias. The central issue was whether the court could provide a remedy for the absence in Hampshire of the relevant 2006 Act machinery.

1. Jurisdiction. The claim was dismissed. Sections 1 to 3 of the Commons Registration Act 1965 maintain existing registers; they do not provide a current power or procedure for fresh registration. Section 4, which formerly enabled applications, had been repealed and its time limit had expired. The register was intended to be definitive, subject only to limited corrective mechanisms.
2. The limited corrective route in Schedule 2 paragraph 4 of the Commons Act 2006 addressed cases affected by the reasoning later rejected in Hampshire County Council v Milburn [1991] 1 AC 325. It had not been commenced in Hampshire. The court could not use statutory interpretation to create that route or extend the operation of the 2006 Act. The court interprets legislation; it does not legislate.
3. Manorial waste. The two limbs of section 22(1) of the 1965 Act are mutually exclusive. Land subject to rights of common falls within section 22(1)(a), whereas section 22(1)(b) concerns waste land of a manor not subject to rights of common. The relevant assessment was made at the registration stage. The Commons Commissioner had found that the land was subject to rights of common, and the issue could not be reopened decades later.
4. Procedure. The Council should have allowed the claimant to respond to new and legally significant representations from the interested party. That was unfair, particularly because the material raised enclosure issues and supplied an additional reason for rejection. It did not justify relief because the outcome was highly likely to have been the same under section 31(2A) of the Senior Courts Act 1981.
5. Applying the fair-minded and informed observer test, there was no apparent bias. The Council’s continuing involvement, leasehold interest and use of the same specialist counsel did not establish a real possibility of bias.