Mr Colin Hall v Gerald Harris and Others

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Kitchin,Lord Justice Richards,Lord Justice Maurice Kay
Judgment Date22 May 2012
Neutral Citation[2012] EWCA Civ 671
Docket NumberCase No: B2/2011/1244

[2012] EWCA Civ 671

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE WORCESTER COUNTY COURT

His Honour Judge Pearce-Higgins QC

7WR00149/7WR00150/9WR02352

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay (Vice President of the Court of Appeal, Civil Division)

Lord Justice Richards

and

Lord Justice Kitchin

Case No: B2/2011/1244

Between:
Mr Colin Hall
Appellant
and
(1) Gerald Harris
(2) Mrs Cynthia Harris
(3) Mrs Shirley Moore
Respondents

Zachary Bredemear (instructed by The Bar Pro Bono Unit) for the Appellant

John Randall QC and Giles Harrison-Hall (instructed by Stallard March & Edwards) for the Respondents

Mr & Mrs Harris (and instructed by Masefields Solicitors) for the Respondent Mrs Shirley Moore

Hearing dates: 26/27 April 2012

Lord Justice Kitchin

Introduction

1

This appeal concerns a parcel of common land called Luckwards Hill in the parish of Powick in Worcestershire. It is one of a number of parcels of common land which are the subject of register unit CL 77 in the register maintained by Worcestershire County Council and which together comprise Powick Common.

2

Luckwards Hill extends over 13.6 acres and lies to the south of a track which runs in a westerly direction from Upton Road. The track passes to the south of Stanbrook Abbey and then Moat House Farm ("the Farm"). At this point the track begins to run along the northern boundary of Luckwards Hill. Not far after the Farm, the track branches. One branch leads in a north westerly direction towards Jennet Tree Lane. The other branch leads in a south westerly direction and again runs along the northern boundary of Luckwards Hill. In the corner of these two branches lies Henwick Cottage. A gate provides access to Luckwards Hill from the track at a point close by the cottage.

3

The appellant, Mr Hall, is the tenant of the Farm and its 56.5 acres pursuant to a tenancy agreement dated 22 July 1998 granted to him by the trustees of Stanbrook Abbey ("the trustees"). The land farmed by Mr Hall lies either side of the track and includes three fields which adjoin Luckwards Hill. Field 1574 lies to the east of Luckwards Hill and immediately to the south of the track. It is separated from the common by a fence and hedge but access to the common may be gained from the field through a gate, referred to in these proceedings as gate B. Field 1354 lies to the south east of Luckwards Hill. It too is separated from the common by a fence and hedge but access to the common may, once again, be gained through a gate, referred to in these proceedings as gate C. Field 8555 lies to the west of Luckwards Hill and is separated from it by a fence.

4

Luckwards Hill is itself divided into two portions by a fence which runs in a south easterly direction from the gate beside the track. The first and second respondents, Mr and Mrs Harris, own the eastern portion of Luckwards Hill which consists of a field of about 10.3 acres. This land was transferred to them by a Mr Richard Jolly on 20 May 2005 and their title is registered under numbers WR 95648 and WR 95790. On the same day Mr and Mrs Harris also acquired adjoining land from the trustees, namely field 1574 to which I have referred and, immediately to its south, a building and land then known as Stanbrook Croft. It is now called Stanbrook Grange and is Mr and Mrs Harris' home. Since field 1574 forms part of the Farm, by letter dated 27 May 2005, the trustees directed Mr Hall to pay the rent in respect of it to Mr and Mrs Harris, and that he has done since that time.

5

The western portion of Luckwards Hill consists of a smaller field of about 3.3 acres which was acquired by the third respondent, Mrs Moore, from Mr Jolly on 28 June 2005. Her title is registered under numbers WR 96452 and WR 96453.

6

Mr Hall's late father Reginald was, until his death in 1997, a tenant of the Farm under a tenancy agreement granted to him by the trustees on 25 April 1961. From the early 1990s until his death in 1997 Mr Reginald Hall was granted a seasonal grazing licence over at least part of Luckwards Hill each year by the freehold owners, Mr Philip Laney and Mr Jolly. After his father's death, Mr Hall also enjoyed the benefit of such annual grazing licences until 2004. Those licences were initially granted by Mr Laney and Mr Jolly and then, after Mr Jolly had purchased Mr Laney's interest in Luckwards Hill, by Mr Jolly. In 2005 and 2006 Mr Hall sought from Mr and Mrs Harris, but was refused, a 20 year lease over their portion of Luckwards Hill. It seems Mr Hall was offered, but did not take up, similar grazing licences to those he had previously enjoyed. Instead, the relationship between the parties began to deteriorate and a series of disputes arose between them concerning a claim by Mr Hall to rights of common over Luckwards Hill. Those disputes led to and are the subject of these proceedings, as I shall explain. But first I must outline the basis of the rights of common to which Mr Hall claims to be entitled.

7

On 2 January 1970 the trustees made an application pursuant to section 4 of the Commons Registration Act 1965 to register the right to graze a defined number of livestock over the whole of register unit CL 77. The right was said to be attached to various lands of Stanbrook Abbey, including a number of fields forming part of the Farm, one of which was field 1574. On 22 January 1970 a provisional entry was made on the register and in due course that entry became final. Mr Hall's claimed rights are founded upon this entry. He maintains that his tenancy agreement impliedly granted to him the trustees' rights of common attaching to the Farm, and that these rights include the right to access Luckwards Hill.

8

I should also mention that for very many years prior to the commencement of these proceedings, many of the commoners of Powick participated in or at least accepted the actions of the Commons Committee of Powick ("the Committee"). Further, in 1984 Mr Jolly and a Mr Laney entered into an agreement with the Committee, purportedly acting on behalf of all those entitled to exercise rights of common over Luckwards Hill. That agreement provided that the commoners waived their rights of common over Luckwards Hill in consideration of the annual sum of £225.00 (reviewable triennially), to be paid to the Committee by the freeholders. The reason for this agreement was that there were over 50 separate commoners entitled to graze the common land in Powick and it was considered impractical for the land at Luckwards Hill to be grazed by all of them. The Committee's income was derived from such waiver agreements and was used to improve the grazing on all the common land in the parish. Mr Hall's position was and remains that, although his father was aware of the meetings convened by the Committee, he chose not to attend them and there was no question of his ever having agreed to any waiver by the Committee of his rights of common. He has always maintained that the Committee had rights of management over the common land but that was the limit of its powers.

The claims

9

On 19 January 2007 Mr Hall issued two claims in the Worcester County Court. In claim 7WR00149 against Mr and Mrs Harris, Mr Hall complained about a number of matters relating to his right to access their portion of Luckwards Hill and exercise his rights of common over it. In claim 7WR00150 against Mrs Moore, Mr Hall made similar complaints relating to her portion of Luckwards Hill.

10

On 22 November 2007 these two claims came before His Honour Judge Geddes who tried, as a preliminary issue, the question whether Mr Hall was entitled to any rights of common over Luckwards Hill. He found against Mr Hall, deciding he had no rights of common by virtue of his tenancy of the Farm and, moreover, there was a further reason why Mr Hall's claim must fail, this being that, since 1984, all such rights had been waived. Therefore no exercisable rights could have passed to Mr Hall under his 1998 tenancy agreement. Mr Hall appealed to this court which, by judgment and order of 18 March 2009, allowed the appeal. Rimer LJ, with whom Toulson and Rix LJJ agreed, concluded that the rights of common over Luckwards Hill attaching to the Farm did pass to Mr Hall with his tenancy and that, in principle, he was entitled to exercise them. Moreover, it could not be said that any rights which Mr Hall enjoyed had been waived by the actions of the Committee, there being no evidence that Mr Reginald Hall or the trustees had conferred any authority on the Committee entitling them to do any such thing. This court therefore declared that Mr Hall was entitled in his capacity as a tenant of the Farm to exercise over CL 77, including Luckwards Hill, the rights of common of pasture registered as attaching to the Farm, with the precise nature and extent of such rights to be determined by the County Court upon the remission of the claims to it.

11

Then, on 17 November 2009, Mr and Mrs Harris issued claim 9WR02352 against Mr Hall claiming that in the course of June or July of that year he unlawfully entered their portion of Luckwards Hill and cut and removed a crop of hay worth £1,200.

12

All three claims came on for trial before His Honour Judge Pearce-Higgins QC on 4 and 5 November 2010. By his judgment handed down on 4 April 2011, he made the following general findings: Mr Hall's right over Luckwards Hill as a commoner was exercisable every third year; that the right was only a right of pasture, that is to say, for a certain number of animals to graze; Mr Hall had no right to cut or remove fodder or to provide additional fodder to the animals grazing; Mr Hall had no...

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  • Mr Colin Hall v Gerald Harris and Others
    • United Kingdom
    • Court of Appeal
    • 27 June 2012
    ...the Court) Lord Justice Kitchin 1 This is the judgment of the Court in relation to the outstanding matters following our main judgment [2012] EWCA Civ 671. They are: i) the substantive form of order; ii) costs. 2 We would say at the outset that we have had the benefit of further written su......