Bettison and Another v Langton and Others
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HUTTON,LORD SCOTT OF FOSCOTE |
| Judgment Date | 17 May 2001 |
| Neutral Citation | [2001] UKHL 24 |
| Date | 17 May 2001 |
| Court | House of Lords |
[2001] UKHL 24
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hutton
Lord Scott of Foscote
and Others
and Others
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Scott of Foscote. On the basis of the material to which he refers and which was considered by Robert Walker LJ it seems to me to be well established that at Common Law appurtenant rights of grazing for a fixed number of animals were severable and that section 187 of the Law of Property Act 1925 did not change that position. Despite the opinions expressed in the Report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462) I also consider it clear that the effect of section 15 of the Commons Registration Act 1965 was that on registration, rights of grazing formally determined by levancy and couchancy became rights to graze a fixed number of animals. There is nothing in the section which requires or leads to the conclusion that the general rule is not to apply. The grazing rights in the present case thus became severable. Accordingly, for the reasons given by Lord Scott I, too, would dismiss the appeal.
My Lords,
This appeal concerns the commons of England and Wales. Despite the continuing growth of towns and cities, ancient common lands still cover about 1.4 million acres, over 4 percent of the total area of England and Wales. Some commons, such as Clapham Common, are now within built up areas. But the great bulk of common lands are in the countryside, notably the extensive hill commons in the north and south west of England and in Wales.
For centuries many farmers whose lands adjoin the local common have enjoyed the right to put out their sheep and cattle to graze on the common. The animals wintered on the farms, but in the summer months they were let out to graze on the open common. This appeal raises an important point concerning the ownership of these grazing rights. These rights have feudal origins, but this should not be allowed to obscure their continuing importance. What happens on the commons is of importance to the local farmers. What happens on the commons is also of wider importance. Commons have considerable amenity value. Increasingly, what happens on the commons is a matter of general public concern. They are the last reserve of uncommitted land in England and Wales. They are an important national resource.
Traditionally grazing rights are an adjunct of the lands of the farmers who own the rights. The rights had their origin in actual or presumed grant, usually the latter. The law assumes that long continued use must have had a lawful origin. The number of animals that a farmer was entitled to depasture on the common was limited to the animals his land could support through the winter. The language was picturesque: the right was limited to the number of bea sts 'levant and couchant' ('getting up and lying down') on the farmer's holding in the winter months. These rights could be passed on or sold, but only with the farm to which they were appurtenant. They were to be enjoyed by the occupier for the time being. They could not be sold separately, or 'severed', from the farm.
Most grazing rights were governed by the principle of levancy and couchancy, but not always. Sometimes a grazing right might be for a fixed number of animals. Then the right, known as a right in gross, could be sold separately. Historically, grazing rights in gross are rare.
The respondents' case is that all this was changed by the Commons Registration Act 1965. Under the Act the number of animals a farmer may pasture on the common in exercise of grazing rights is the number stated in the commons register. Levancy and couchancy, as a principle for quantifying a grazing right, has been overtaken. Accordingly, it is said, the Act has had the effect of transforming all grazing rights into rights in gross, which can be sold separately from the land to which they have been annexed for centuries. It is not suggested that in 1965 anyone anticipated or intended that the registration provisions should have this far-reaching effect. But, so it is said, as night follows day, that is the inevitable consequence of section 15 of the Act. Whether Parliament intended that result or not, that is what Parliament has done.
My Lords, arguments of this nature are to be approached with circumspection. An Act of Parliament is to be interpreted having regard to its purpose. The court is looking for the intention of Parliament expressed in the language under consideration. The intention of Parliament is to be judged objectively. It is the intention which the court imputes to Parliament in using the words in question. If the statutory language is fairly susceptible of a meaning which gives effect to the parliamentary intention, the court will prefer that meaning.
The object of the Act
So the starting point is to identify the purpose of the Commons Registration Act 1965. This was important but limited. It is well summarised in Megarry and Wade, The Law of Real Property, 6th ed (2000), p 1144. In 1965 there were many uncertainties about what land was subject to rights of common and what rights of common existed over these lands. The object of the Act was 'to lay a foundation for further legislation to govern the management and improvement of common land'. To this end the Act enacted provisions for ascertaining what rights were claimed to be still in existence, and for extinguishing others. The provisions of the Act are to be interpreted with this in mind.
The background to the Act
Next, the background to the legislation. The Act followed the report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462). The Royal Commission was chaired by Sir Ivor Jennings QC. The overriding conclusion of the report was that common land ought to be preserved in the public interest. The commission recommended that certain local authorities should register claims that land is common land and claims by commoners to rights over common land. Any rights not registered should be held to have lapsed.
Paragraphs 271 to 275 of the report dealt specifically with grazing rights or, more formally, rights of common of pasture. The report noted that, under the commission's recommendations, a right of common of pasture would be registered either as attached to a holding (appurtenant) or, if unattached, in the name of the owner as a right in gross. A claimant should be free to register his grazing rights as rights in gross provided he could produce evidence that that is what they were. The onus of proof would be on him. Otherwise rights of pasture would be registered as appurtenant to the land to which they were attached. Changes in the ownership of rights in gross would be registrable, but changes in the ownership of a holding to which grazing rights were appurtenant would not. Particulars of rights appurtenant would only be altered in the register if the holding were split. Otherwise, barring compulsory acquisition, or the purchase of rights within an approved scheme of management, 'the rights would remain inseparable from the original holding': see paragraph 273. The commission added:
'The permanent registration of common rights attached to holdings as rights appurtenant should avert any danger of rights subsequently being alienated.'
Earlier in its report, at paragraphs 30-31, the commission criticised levancy and couchancy as one of the old customs and practices which, if not totally forgotten, were often an indifferent guide in modern circumstances and tended to become discredited. So it was small wonder if each commoner shifted for himself and crowded as many sheep as he dared on the upland sheepwalk. As a result the sward was becomingly increasingly impoverished through overgrazing. But if levancy and couchancy was not a satisfactory way to determine the extent of registered grazing rights, some other method had to be found. After considering possible alternatives, the commission recommended that each claimant should be free to claim those rights of pasture which he believed he was entitled to: see paragraph 274. A procedure was recommended for making and resolving objections which other commoners or the owner of the soil might have.
Thus, the commission made abundantly plain that, although it was recommending that grazing rights appurtenant to a farm should be quantified as fixed numbers, that was not intended to make the rights alienable from the farm. The commission envisaged that registration as an appurtenant right would suffice to maintain the appurtenant character of the right even though the right would be quantified. This intention was repeated in the commission's summary of its recommendations, in paragraph 405(5):
'A right of common of pasture should be registered as appurtenant (i.e. attached) to the holding(s) of the claimant or, on proof by the claimant, as in gross (i.e. unattached to a holding). …Rights appurtenant should not be severable from land to which they appertain, unless extinguished or transferred within an approved scheme of management and improvement.' (My emphasis.)
The wording of the Act
I turn now to the Act. I can say at once that one looks in vain for any indication that Parliament intended to depart from the commission's recommendations relating to grazing rights. Indeed, a striking feature of the Act is that it implements all the relevant recommendations in every particular. Section 1 provides for the registration of rights of common over common land. The section further provides that after the end of a prescribed period no rights of common shall be exercisable over common land...
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