Hampshire County Council v Milburn
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Griffiths,Lord Ackner,Lord Lowry |
| Judgment Date | 10 May 1990 |
| Judgment citation (vLex) | [1990] UKHL J0510-1 |
| Court | House of Lords |
| Date | 10 May 1990 |
[1990] UKHL J0510-1
House of Lords
Lord Keith of Kinkel
Lord Templeman
Lord Griffiths
Lord Ackner
Lord Lowry
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Templeman, I agree with it and for the reasons he gives I too would allow this appeal.
My Lords,
This appeal concerns Hazeley Heath and Mattingley Green in Hampshire. Hazeley Heath consists of 338 acres formerly part of the waste land of the manor of Hazell. Mattingley Green consists of 27 acres formerly part of the waste land of the manor of Putham. Since no new manors can have been created since the statute of Quia Emptores in 1290 (18 Edw. 1, c. 1-3) it follows that Hazeley Heath and Mattingley Green have for at least 700 years been, as they are now, "open, uncultivated and unoccupied," in the words of the legal phrase which describes common land. Both Hazeley Heath and Mattingley Green were rightly registered as common land under the Commons Registration Act 1965. The respondent, Sir Anthony Milburn, who is the owner of Hazeley Heath and Mattingley Green applied for them both to be removed from the register. At the trial Millett J. was constrained by an earlier decision of the Court of Appeal, dealing with a similar question, to grant this application and the appellants, the Hampshire County Council, now appeal to this House.
The historical background to this appeal appears from the submissions of Mr. Nugee who appeared for the county council, from Miss Cameron who appeared for Sir Anthony Milburn, from the excellent book entitled The Law of Commons (1988), by Mr. G. D. Gadsden and from Halsbury's Laws of England 2nd ed. vol. 4, (1932), title Commons. The manorial system which the Normans partly inherited and partly established displayed a variety of local laws and customs but in general there were three categories of land comprised in a manor. The demesne land belonged to the lord of the manor. The copyhold land was divided between the tenants of the lord of the manor. The remainder of the land consisted of uncultivated land, referred to as the waste of the manor. The waste land was the natural source of grazing, fodder and fuel for all the inhabitants of the manor. The waste land belonged to the lord of the manor subject to the rights of the tenants to enjoy in common the fruits or some of the fruits of the soil in the manner of a "profit a prendre." The rights of the commoners varied from manor to manor. The extent of the right of any particular commoner depended on the origin of the right and might depend on the size and situation of land held by the commoner. A grant of arable land to a freeman prior to 1290 entitled him by common law to the use of the manorial waste for such purposes as were necessary for the maintenance of his husbandry. Common rights could also be acquired by grant, custom or prescription. The right of a commoner was the right "to eat the grass with the mouths of his cattle, or to take such other produce of the soil as he may be entitled to;" 1 Roll Abr. 406 as adopted in 1 Saund. 353(a) (Halsbury, 2nd ed. vol. 4, para. 1134). There were four main categories of common rights, namely the common of pasture, being the right to feed cattle, horses, sheep and other animals; the common of estovers, namely the right to take wood to build and maintain houses and fences and for fuel and other agricultural purposes; the common of piscary, being the right to fish and the common of turbary, being the right to dig peat. Whatever the rights of a commoner he could enforce his rights against the lord of the manor who owned the soil but could not obstruct the exercise of the rights so that Watson B. was able to say in Attorney-General v. Hanmer (1858) 27 L.J. Ch. 837, 840 that:
"The true meaning of 'wastes', or 'waste lands,' or 'waste grounds of the manor,' is the open, uncultivated and unoccupied lands parcel of the manor, or open lands parcel of the manor other than the demesne lands of the manor."
Although the public, as opposed to the commoners, had in general no rights over the waste lands of the manor, they could not in practice be excluded from access to the waste land because fences would obstruct the exercise by the commoners of their rights. Public access was not very important so long as travel was restricted but became of importance as the amount of land available for public use was restricted by enclosures, legal or illegal. As the population of England and Wales increased and became urbanised, commercial agriculture replaced the self-sufficient manorial cultivation. To increase agricultural production it became necessary to enclose waste lands for further and more efficient methods of agricultural use. Waste land could only be enclosed lawfully if the rights of the commoners were extinguished. This was at first done by a private Act of Parliament and later under the Inclosure Act 1845 (8 & 9 Vict. c. 118). Shortly after the Act of 1845, it was realised that it was in the public interest that there should continue to exist tracts of open land to which the public could have access. In the same way as the waste land was preserved by the manorial system for the common benefit of the inhabitants of the manor, so as the number and rights of the commoners dwindled, it became necessary to preserve the waste land for the benefit of the inhabitants generally. Thus the Commons Act 1876 (39 & 40 Vict. c. 56) recited that inclosure as opposed to the regulation of commons should not be thereafter made:
"unless it can be proved to the satisfaction of the [Inclosure] Commissioners and of Parliament that such inclosure will be of benefit to the neighbourhood as well as to private interests, and to those who are legally interested in any such commons."
In the result there have been since 1876 only 29 applications for inclosure under the Inclosure Act of 1845, the last being in 1914.
By section 193 of the Law of Property Act 1925, members of the public were granted rights of access for air and exercise, inter alia, to any manorial waste wholly or partly situated within a borough or urban district. Hazeley Heath and Mattingley Green are not situate within a borough or urban district but by section 194 of the Act of 1925 the erection of any building or fence, or the construction of any other work, whereby any land which on 1 January 1926 was subject to rights of common is prevented or impeded is unlawful without the consent of the Minister of Agriculture and he may not give his consent, pursuant to the Commons Act 1876, unless the proposals are for the benefit of the neighbourhood. The county council is given the power to enforce this restriction in the county court.
The Law of Property Act 1922 came into force immediately before the commencement of the Law of Property Act 1925, namely on 1 January 1926. The Act of 1922 broke the link between the lordship of the manor and the title to land. Copyhold was abolished. The lord of the manor remained entitled to the waste land in fee simple subject to the rights of the commoners. Section 62(3) of the Law of Property Act 1925, repeating section 6(3) of the Conveyancing Act 1881 (44 & 45 Vict. c. 41), provided that a conveyance of a manor should be deemed to include all the manorial rights vested in the lord of the manor, including rights and incidents abolished by the Act of 1922 and including "commons" which were "to the manor appertaining or reputed to appertain, or, at the time of conveyance, demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof." So after 1925 it was possible to convey waste of the manor by a conveyance in fee simple or by a conveyance of the manor itself so that the waste passed under section 62(3) of the Act of 1925. But this was only machinery. For all practical purposes after 1926 the lordship of the manor was an empty title.
Although the Acts of 1876 and 1925 recognised the undesirability of inclosure and the desirability of preserving commons for the benefit of the public, those Acts could not cope with the difficulties caused by illegal encroachment, by the disappearance of commoners, by the disappearance of lords of the manor or with...
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