Paul Rushmer v Central Bedfordshire Council
| Jurisdiction | England & Wales |
| Judge | Mr Nicholas Thompsell |
| Judgment Date | 23 June 2023 |
| Neutral Citation | [2023] EWHC 1341 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: PT-2022-000569 |
[2023] EWHC 1341 (Ch)
Mr Nicholas Thompsell
Sitting as a Deputy Judge of the High Court
Claim No: PT-2022-000569
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF
ENGLAND AND WALES PROPERTY TRUSTS
AND PROBATE LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Paul Wilmshurst for the Claimant
Mr Matthew Feldman (instructed by Pathfinder Legal Services) for the Defendant
Hearing dates: 23–24 May 2023
INTRODUCTION
This case raises interesting questions concerning the extent that a register of common land maintained by commons registration authority is capable of challenge in the High Court.
The Claimants are two couples who own adjoining properties on Church Road in the village of Studham. The First and Second Claimants, Mr and Mrs Rushmer, own a property known as “The Forge”. The Third and Fourth Claimants, Mr and Mrs Harris own an adjacent property now known as “Madyar”.
The properties are close to Studham Common and the Claimants have become concerned that the relationship between their land and Studham Common is unclear.
The Defendant (which I will also refer to as “ the Council”) is the commons registration authority for the area that includes Studham Common. It inherited this role from the Bedfordshire County Council, the original commons registration authority for the area, following a reorganisation of local government in 2009. As commons registration authority, the Council is responsible for maintaining a common land register open for inspection by members of the public at all reasonable times. It has this responsibility under sections 1 to 3 of the Commons Registration Act 1965 (“ CRA 1965”).
The Claimants originally engaged with the Defendant concerning complaints they had regarding the parking of cars near their properties causing a nuisance and blocking access. Adjacent to these two properties to the East is a public house, and adjacent to them to the West is the Studham Methodist Church. The Claimants contended that cars visiting the church or the public house were being parked on common land, that this was prohibited, and that the Defendant, as the commons registration authority, was obliged to enforce this prohibition.
In the course of correspondence on this matter the Claimants formed the view that the extent of the common land was not clear. Representatives of the Claimants inspected the Defendant's register of common land on 12 April 2022 and noted a series of anomalies and apparent deficiencies within the register and also that the map purporting to show the bounds of Studham Common was not consistent with certain previous representations made by the Council as to the bounds of the common land.
On 4 July 2022, the Claimants filed a Part 8 Claim Form, which was issued the next day, seeking certain declarations as to the extent and boundaries of Studham Common. Under the heading “Details of Claim”, the Claimants wrote:
“This claim concerns the status of land known as Studham Common in the County of Bedfordshire. The Claimants seek certain declarations as to the extent and boundaries of the Common by which it is meant the registered extent according to the register prepared pursuant to the system created by the Commons Registration Act 1965 or within the terms of the Scheme for the Regulation and Management of Studham Common 1911.”
On 20 October 2022, a hearing took place before Master Kaye. The Master, having noted that the claim form did not set out the declarations sought by the Claimants, required the Claimants, by means of an order sealed on 28 October 2022, to amend the claim form in this respect. The resultant amended claim form confirmed that:
“1. The Claimants seek a declaration as to the legal validity of the Commons Register, which is currently kept (pursuant to the Commons Registration Act 1965) open for public inspection and in particular in relation to land known as Studham Common.
2. The Claimants seek a declaration as to the extent of land known as Studham Common which is registered as common land under s. 1 of the Commons Registration Act 1965.
3. The Claimants seek a declaration as the extent [sic] of land which is common land under the Scheme for the Regulation and Management of Studham Common 1911.
4. The Claimants seek a declaration as to the extent to which their properties (namely: The Forge, Church Road, Studham, Dunstable LU6 2QA and Madyar, Church Road, Studham, Dunstable LU6 2QA) are registered as common land under s. 1 of the Commons Registration Act 1965 and/or under the Scheme for the Regulation and Management of Studham Common 1911.
5. If necessary, the Claimants seek an order for rectification of the Defendant's commons register under s. 14 of the Commons Registration Act 1965 if it is found by the court that no amendment or a different amendment ought to have been made to the Defendant's commons register and that the error cannot be corrected in pursuance of regulations made the said Commons Regulations Act 1965.”
OVERVIEW OF THE COMMONS REGISTRATION SYSTEM
Before turning to the substantive questions to be considered by the court, it is useful to outline the nature and history of the commons registration system in England and Wales.
The CRA 1965 came into force on 1 January 1970. It aimed to remove ambiguity about the legal status of the extent of common land in England and Wales. By section 1 CRA 1965, each commons registration authority (usually a County Council) became required to maintain a register of common land. All common land existing at that time had to be registered by 31 July 1970. The final date for submitting applications for such registration was fixed as 2 January 1970 1.
If no application for registration was made, and the registration authority did not act of its own volition to create an entry (pursuant to section 4 CRA 1965), then land ceased to be common land (see section 1(2) CRA 1965). Conversely, under section 10 CRA 1965 the final registration of any land in the land section of the register as common land or as a town or village green was to be conclusive evidence of the matters registered.
In the present case, the commons registration authority (originally Bedfordshire County Council) provisionally entered Studham Common onto the register on 28 December 1967 of its own volition. This was unchallenged. Under the scheme provided for under the CRA 1965, the entry automatically, in the absence of any challenge, became final on 4th December 1970.
Section 22(1) of CRA 1965 defined common land as:
“land subject to rights of common whether those rights are exercisable at all times or only during limited periods; or waste land of a manor not subject to rights of common.” 2
Where land is finally registered as common land, but no rights of common are registered against it, the land is conclusively presumed to be waste land of a manor and therefore remains common land. This was established in President and Scholars of Corpus Christi College, Oxford v Gloucestershire County Council [1983] QB 360, at 369[G]).
Lord Denning MR provides a useful summary on page 365 of that judgment of what is meant by waste lands of a manor, as well as some trenchant criticism of the rigidity of the scheme provided for by the CRA 1965 (on page 370).
These criticisms have since been largely ameliorated by the introduction of processes within the Commons Act 2006 (“ CA 2006”) allowing some flexibility in amending the register. CA 2006 supplemented and replaced certain provisions in CRA 1965. In particular, section 19 CA 2006 provides further for amendments of a register by registration authorities where there has been a mistake.
Registration as common land has various other important effects, in particular:
(a) the public has access to all registered common land for the purposes of open-air recreation by virtue of section 13 of the Countryside and Rights of Way Act 2000;
(b) Part 3 of CA 2006 contains a highly restrictive set of provisions requiring special permission of the Secretary of State for many types of work on common land.
Given the profound effects that registration has, it is understandable that the Claimants are anxious to resolve any doubt as to the relationship of their properties to Studham Common.
STRIKING OUT APPLICATION
The Defendant objected to the Claimants' application, and through its own application made on 16 May 2023, asked the court to strike out the Claimants' case under Civil Procedure Rule (“ CPR”) 3.4.
Under CPR 3.4(2) the court may strike out a statement of case if it appears to the court–
“(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.”
The Defendant based its striking out application chiefly on the basis that the relief sought is beyond the High Court's jurisdiction.
The Defendant also supported this with various arguments to the effect that the Claimants are bringing a claim for an ulterior motive to stop illegal parking on the common, and that the stated motive claimed by two of the Claimants, Mr and Mrs Harris, that they wish to clarify this issue in order to be able to move house, was unfounded. However, I do not see that there is anything in these supporting arguments, even if the Defendant's contentions could have been shown to be true on a balance of probabilities (which they were not during the course of the hearing). Here I have regard to the White Book at CPR 3.4.15 which...
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