Hall v Moore & Anor [2009] EWCA Civ 201

[2009] EWCA Civ 201Case No 2008/0140
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
His Honour Judge Geddes
Case Nos: 7WR00149 and 7WR00150
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/03/2009
Before
LORD JUSTICE RIXLORD JUSTICE TOULSON- and –LORD JUSTICE RIMER
Between
COLIN HALLAppellant(1) SHIRLEY MOORE andRespondent(2) GERALD HARRIS and CYNTHIA HARRISRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person for in personMr Giles Harrison-Hall (instructed by Masefield Solicitors LLP) for Respondent Shirley MooreMr Giles Harrison-Hall (instructed by John Stallard & Co) for Respondents Mr and Mrs HarrisHearing Hearing date: 5 December 2008
JudgmentLord Justice Rimer :Introduction
[1]These are appeals by Colin Hall against orders made on 22 November 2007 by His Honour Judge Geddes in two claims tried together in the Worcester County Court in each of which Mr Hall was the claimant. The claims raised like issues. One claim was against Shirley Moore, the respondent to one appeal. The other claim was against Gerald and Cynthia Harris, the respondents to the other appeal. Mr Hall represented himself before the judge, as before us. I gave him permission to appeal on two grounds at an oral hearing on 10 July 2008. Mr Giles Harrison-Hall represented the respondents at the trials, as he did before us.[2]The case is about rights of common. Luckwards Hill, Powick, Worcestershire is common land subject to registered rights of common of pasture recorded in the register maintained by Worcestershire County Council. It comprises some ten acres and forms a small part of several areas of land in the parish of Powick totalling some 400 acres (comprising registration unit CL77) that are the subject of the registered rights. The registrations were made under the Commons Registration Act 1965. The rights are exercisable one year in three. Part of Luckwards Hill is owned by Mr and Mrs Harris whose title is registered under title numbers WR95784 and WR95790. They acquired their land in May 2005, having bought it from a Mr Jolly. The remaining, smaller, part is owned by Mrs Moore whose title is registered under numbers WR96452 and WR96453. Mrs Moore acquired her land in July 2005, having also bought it from Mr Jolly.[3]Those entitled to registered rights of common over Luckwards Hill include the trustees of Stanbrook Abbey (“the trustees”). Their rights were registered on 22 January 1970 and are rights of common of pasture on the land in respect of defined numbers of cattle, horses or sheep. They are registered as attached to, amongst other parcels, Moat House Farm, Callow End, Powick (“the Farm”). The Farm comprises some 56 acres and is adjacent to Luckwards Hill.[4]Mr Hall’s late father Reginald was, from 1961 until his death in 1997, a tenant of the Farm under a tenancy agreement dated 25 April 1961. Mr Hall has himself been a tenant of it since 1998 under a tenancy agreement dated 22 July 1998. Their respective tenancies were granted by the trustees. Each tenancy agreement granted a tenancy from year to year. Mr Hall’s case is that his tenancy agreement also impliedly granted him the trustees’ rights of common attached to the Farm, for which proposition he relies on section 62 of the Law of Property Act 1925. His complaint against Mr and Mrs Harris is that they had obstructed his access to Luckwards Hill by padlocking the gate to the field and fencing off his access. His complaint against Mrs Moore was similar, namely that she had erected fencing on the west side of Luckwards Hill and stables near the entrance to the common, so enclosing the common and wrongfully impeding his access to it. He said that Mrs Moore and Mr and Mrs Harris had obstructed his enjoyment of his rights as a commoner and his claims, brought in nuisance for the disturbance of his rights, were directed at restraining the obstructions by injunction.[5]The judge tried as a preliminary issue the question as to whether Mr Hall was entitled to his claimed right of common to graze livestock on Luckwards Hill. He found against Mr Hall on that issue and granted injunctions in both cases restraining him from going on to Luckwards Hill. He declared that Mr Hall has no common rights by virtue of his tenancy of the Farm in respect of the common land registered under CL77. He ordered him to pay the defendants’ costs.

The first ground of appeal

[6]The first question before the judge was whether the trustees’ rights of common passed to Mr Hall with his 1998 tenancy agreement under section 62. A right of common is an incorporeal hereditament in the nature of a profit a prendre and it was accepted before us that such a right is in principle capable of passing under section 62 (see White and Another v. Williams [1922] 1 KB 727, a decision on section 6 of the Conveyancing Act 1881, the statutory predecessor of section 62; and White v. Taylor (No 2) [1969] 1 Ch 160, 184). There was, however, a dispute as to whether the claimed rights in fact passed to Mr Hall. The judge held they did not. That was on the ground that Mr Hall’s 1998 tenancy agreement expressly reserved those rights to the trustees. The relevant reservation was expressed to be of the rights set out in the Second Schedule, which was in the same form as that included in the late Mr Hall senior’s 1961 tenancy agreement. The reserved rights were under four heads, of which only paragraph 4 is material and reads:
“4. The benefit of all existing and future wayleaves, easements and rights affecting the Farm and all rents and moneys payable in respect thereof.”
The judge interpreted that as reserving to the trustees, amongst other rights, the rights of common attached to the Farm. It followed that they had not passed to Mr Hall under section 62.[7]Mr Hall challenges that conclusion. His primary argument to the judge, which he repeated to us, was that the assertion that paragraph 4 had so reserved the rights of common was wrong because, he said, Wheeldon v. Burrows (1879) 12 Ch. D. 31 was authority for the proposition that for a right to be validly reserved, the reservation must state the nature of the reserved right expressly. As paragraph 4 did not state that the reserved rights included the rights of common, the claim that they were reserved by the tenancy failed the Wheeldon test. Therefore they passed to Mr Hall under section 62.[8]The judge rejected that argument and so would I. Wheeldon’s case is not authority for the proposition that a right will only be validly reserved if its precise nature is expressly spelt out in the relevant grant. It is authority for the proposition that upon the sale of part of a vendor’s property, a reservation of rights in favour of the retained land will not -- easements of necessity apart -- ordinarily be implied; and that if any rights are to be reserved, they must be reserved expressly. In this case, if as a matter of interpretation the trustees’ rights of common are correctly regarded as “rights affecting the Farm”, paragraph 4 was a sufficient express reservation of them.[9]Mr Hall’s further argument to the judge, which he also repeated to us, was that the relevant rights of common were not “rights affecting the Farm” that were capable of being reserved to the trustees. His point was that as the rights are attached, or appurtenant, to the Farm, they could not be severed from it and could therefore only be exercised by the occupier of the Farm.[10]In response to that, Mr Harrison-Hall submitted to us that the decision of the House of Lords in Bettison and another v. Langton and others [2002] 1 AC 27 shows that appurtenant rights of common for the grazing of fixed numbers of animals (which is this case) are capable of being severed from the land to which they are appurtenant and of so becoming rights in gross. It followed that there was in principle no reason why, upon the grant of the tenancy to Mr Hall in 1998, the trustees could not reserve to themselves the benefit of the rights.[11]I consider that Mr Harrison-Hall was right about that too and I would also decide that point against Mr Hall. It was not, in fact, one that was explored before the judge, the argument before him proceeding on the assumption that the trustees could so reserve the rights of common. The issue was whether, by paragraph 4, they had done so. Mr Hall’s further point, which was the real issue under this first ground of appeal, was that the judge was wrong to interpret paragraph 4 as in fact reserving the rights of common to the trustees. The judge did not explain his reasoning for that beyond saying:
“In my judgment a right of common which the farm would otherwise enjoy is a right affecting the farm and is not confined – the term ‘right’ in that clause is not confined to the rights of the landlord over the farm.”
[12]In support of his submission challenging the judge’s conclusion, Mr Hall politely adopted the argument that I indicated was available to him when ruling on his application for permission to appeal. As a matter of ordinary English, a right that benefits a particular property can of course be said to “affect” it: for example, the value of the property may be “affected” according to whether it does or does not have the benefit of a restrictive covenant limiting the use to which adjoining land may be put. But the context of paragraph 4 indicates that the word “affecting” is there being used not as referring to rights benefiting Moat Farm so much as to rights burdening it, which is the usual sense of the word (cf Buckley J’s use of it in White and Others v. Taylor and Another [1969] 1 Ch 150, at 177E; and the Charges Register of Mrs Moore’s registered title no. WR96452, which twice uses the word “affecting” in the same sense). For example, one class of rights reserved by paragraph 4 is “easements … affecting the Farm and all … moneys payable in respect thereof.” That only makes sense in relation to easements in respect of which the Farm is the servient tenement and for which a compensatory payment is made for the burden so imposed on it. The effect of the reservation is to reserve to the trustees the benefit of that easement including (and, for practical purposes, meaning only) the right to the payment. If the Farm is the dominant tenement in respect of an easement over other land, it is not going to receive payment for such a benefit: it will or may itself be paying for it. Paragraph 4 is not reserving the benefit of rights of that nature. It could not sensibly be interpreted as doing so since that would produce an absurd result. It would mean that if the Farm has the benefit of an important easement over adjoining land, the tenant could not exercise it.[13]Turning to this case, the rights of common were attached to the Farm and benefited it. The Farm was the dominant tenement. By parity of reasoning with the easement example, and assuming that those rights were available to be enjoyed by the Farm immediately before the 1998 lease, Mr Hall’s argument was, in summary, that the reservation could not be interpreted as reserving them to the trustees. There is, the argument runs, no basis for regarding the reference to “easements” in paragraph 4 as a reference to rights burdening the Farm but for regarding the “rights” referred to as those that benefit it.[14]In response, Mr Harrison-Hall accepted that the reservation by paragraph 4 of “the benefit of all … wayleaves [and] easements … affecting the Farm and all rents and moneys payable in respect thereof” referred naturally, and only, to wayleaves and easements burdeningthe Farm. He did not submit that the reservation could sensibly be interpreted as referring to wayleaves and easements appurtenant to it. But he said there was no sound reason for interpreting the words “rights” as also referring only to rights burdening the Farm, being rights for which some monetary compensation might be payable. He said that the word “rights” could and did in the context include rights appurtenant or attached to the Farm, such as a right of common, and that paragraph 4 was reserving such rights to the trustees.[15]I have to say that I find that an unconvincing argument. Paragraph 4 has to be read and interpreted as a whole. Once it is accepted, as Mr Harrison-Hall did, that the wayleaves and easements referred to are those burdening the Farm, it requires a considerable degree of interpretative contortion to regard the subsequent reference to “rights”, which is essentially a sweeping up reference, as suddenly referring either exclusively to, or at least as including, rights benefiting the Farm. I respectfully disagree with the argument. The contortions it requires are too painful. In my judgment, the natural sense of the reference to “rights” in paragraph 4 is that it is referring to rights of a like kind as those to which it has just referred, namely rights burdening the Farm. On that basis, it is not referring to the rights of common over Luckwards Hill that are attached, or appurtenant, to the Farm and in respect of which the Farm was and is therefore the dominanttenement. In my judgment the judge was wrong to hold otherwise.[16]Mr Harrison-Hall advanced a further argument in support of the judge’s interpretation. This was that even if the judge was wrong as to the natural meaning of the words of reservation, it was important to have in mind the judge’s finding that until the present dispute arose in 2006, neither Mr Hall senior nor his son ever asserted a right of common over Luckwards Hill. On the contrary, the judge found that from the early 1990s father and son successively entered into a series of annual grazing licences under which they enjoyed exclusive rights over Luckwards Hill. Thus, said Mr Harrison-Hall, it was apparent that Mr Hall senior never regarded his 1961 lease as vesting in him the rights of common over Luckwards Hill; and he had entered into grazing agreements that could be said to be inconsistent with his having any such rights. Anyone dealing with Luckwards Hill in the knowledge of how Mr Hall senior had regarded the sense of the reservation in paragraph 4 in his tenancy agreement would have understood that he did not regard it as doing other than reserving the rights of common to the trustees. Nor, Mr Harrison-Hall said, did the trustees ever regard the 1961 tenancy agreement as granting rights of common to Mr Hall senior. It followed that by the time that the trustees came to grant Mr Hall junior his tenancy in 1998, it was everyone’s understanding that no-one had regarded paragraph 4 in the 1961 tenancy agreement as doing other than reserving the rights of common; and when the trustees granted the successor tenancy to Mr Hall junior in 1998, the identical paragraph 4 in his tenancy agreement must be read as doing the same.[17]Carefully though Mr Harrison-Hall unfolded it, I regard that submission as obviously wrong. There is no evidence that Mr Hall senior ever formed or uttered any views on the effect of the reservation in paragraph 4. There is no evidence that during his lifetime the trustees ever did so either. If the correct interpretation of the 1961 tenancy agreement was that it impliedly granted the rights of the common to Mr Hall and did not reserve them to the trustees, the facts upon which Mr Harrison-Hall relies do not begin to make good an argument that by 1998 paragraph 4 was being impliedly interpreted as in fact reserving the rights to the trustees. In order to make that argument good, it would at the very least be necessary for there to be evidence of overt dealings between Mr Hall senior and the trustees from which it could properly be inferred that both sides were conducting themselves on the clear basis that paragraph 4 did so reserve the rights. If there had been any such evidence, a point might perhaps have been reached at which it could be said that Mr Hall senior became estopped by convention from denying that paragraph 4 had reserved them. There was, however, no evidence enabling any such case to be mounted. The most that might be said is that Mr Hall senior never used the rights impliedly granted to him by his tenancy. So be it. But that would not, without more, require them to be regarded as relinquished or abandoned or to require paragraph 4 in his tenancy agreement to be read as reserving them to the trustees. I would reject Mr Harrison-Hall’s further argument.[18]Mr Harrison-Hall’s final point on this topic, which was first raised in his oral argument to us, was based on clause 4.6 of the 1998 tenancy agreement, which mirrored an identical provision in the 1961 agreement. It provides:
“The rights of the parties under this Agreement or otherwise in respect of the tenancy shall not depend on or be affected by any custom of the country.”
[19]His point was the rights of common attached to the Farm are rights deriving from custom of the country and that the effect of clause 4.6 was to operate as a pro tanto disapplication of section 62 in relation to such rights. I do not accept that argument either. The trustees’ rights of common must have had their origin in a grant, whether actual or presumed. The rights are in the nature of a profit and are property rights capable of being sold and transferred. I do not accept that the somewhat imprecise wording of clause 4.6 was intending, or should be interpreted as intending, to exclude the passing to the tenant of such rights under section 62.[20]In my judgment, therefore, the judge was in error in deciding the first point against Mr Hall. Subject to the point arising under the second ground of appeal, he ought to have held that the rights of common of pasture over Luckwards Hill that are attached to the Farm did pass to him with his tenancy of the Farm and that in principle he was and is entitled to exercise them.

The second ground of appeal

[21]If wrong on the interpretation of the reservation in paragraph 4, the judge held that there was anyway a further reason why Mr Hall’s claim to rights of common over Luckwards Hill was not made out. That was because since 1984 all such rights had been waived. Therefore no exercisable rights could have passed to Mr Hall under his 1998 tenancy agreement.[22]The evidential basis of this point was explained in various witness statements. I must summarise them. Mr Jolly was Mrs Moore’s and Mr and Mrs Harris’s predecessor in title to Luckwards Hill. He bought Luckwards Hill in March 1984 jointly with Mr Laney. He said that during his ownership there was always an agreement with the Commons Committee for Powick (“the Committee”) under which, upon payment of £225 a year, the commoners waived their rights of common over the two fields in his ownership. He exhibited a copy of an agreement made on 20 November 1984 relating to both fields comprising Luckwards Hill. It was made between(1) “the Commons Committee for Powick acting by George Norman Maley … on behalf of all those persons whose names are finally entered in the Commons Rights section of the Register kept by the Hereford and Worcester County Council under the Commons Registration Act 1965 as entitled to exercise rights of common in and over [Luckwards Hill]” and(2) Mr Laney and himself. It provided that the commoners, in consideration of the annual sum of £225 (to be reviewable triennially) paid by the freeholders, waived their rights of common over Luckwards Hill. The agreement was terminable on 12 months’ notice by either side.[23]Mr Jolly’s further evidence was that from March 1984 until about 1990, Mr Laney grazed sheep on both fields comprising Luckwards Hill. He said that from the early 1990s Mr Hall senior may also have grazed both fields under yearly grazing licences; and he produced copies of grazing licences in respect of Luckwards Hill granted to Mr Hall junior in March 1997, 1998, 2000, 2001, 2003 and 2004. The first agreement was made in consideration of the payment of £900 for the season, with the payment for each subsequent agreement being £670 (save for that for 2003, which appears to have been granted gratuitously).[24]Mr Floyd, the Chairman of the Committee since 1997 and a member of it for about 30 years, explained in his evidence that the reason for the waiver agreement was that there were over 50 separate commoners entitled to graze the common land in the parish of Powick, and it would be impractical for the land at Luckwards Hill (a mere 10 acres or so), to be grazed by all those entitled to exercise a right of common. The Committee’s only income was derived from the waiver agreements and that income was used for the benefit of all commoners in improving the grazing on all the commonable land in Powick (being unit CL77, which extends to about 400 acres).[25]Evidence was also given by Mr Colin Mason, the Haywarden of the Committee since about 1972. He was the last person to plough Luckwards Hill, which was in the 1960s. He ploughed it on behalf of the then owner, Dick Bailey. He said it had been pasture since the late 1960s and that neither Mr Hall senior nor his son had exercised any right of common over it or claimed any right to do so until Mr Hall asserted such a right in 2006.[26]No grazing rights have been granted to Mr Hall since Mrs Moore and Mr and Mrs Harris acquired Luckwards Hill in 2005. The evidence of Mr and Mrs Harris was that Mr Hall asked them to grant him a 20-year lease of the field, to which they replied that they had not bought it in order to lease it for 20 years. They did, however, offer to continue the seasonal grazing licences he had enjoyed, but Mr Hall said he did not want that. On 25 August 2005 Mr and Mrs Harris entered into an agreement with the Committee, acting by Mr Floyd, in the same terms as that of the November 1984 agreement, with the waiver fee being £200 a year[27]Mrs Moore, in her witness statement, said that when she bought her part of Luckwards Hill at auction on 28 June 2005, she knew that it was subject to rights of common but also that the Committee had entered into an agreement with her vendor whereby the rights would not be exercised upon payment of £75 a year. Her understanding was that as a purchaser she would have the benefit of a similar agreement. She completed her purchase on 26 July 2005. On 25 September 2005 she entered into a similar agreement with the Committee, acting by Mr Floyd. The form of the agreement was the same as that of the 1984 agreement.[28]The judge’s conclusion about those waiver agreements was that it was a proper inference that the Committee, acting by its Chairman, had the commoners’ authority to enter into them and he referred to Mr Floyd’s evidence that every year an annual general meeting of the commoners is advertised, which every commoner is entitled to attend at which it elects a committee. The judge held, on the balance of probability, that there must have been an express, or at least an implied, agreement between all the commoners and the Committee that it would act on their behalf. He held, therefore, that it must be presumed that the agreements purporting to waive the commoners’ rights were entered into with the proper authority of the commoners and amounted to an effective waiver of their rights for the duration of the agreements. On that basis no common rights over Luckwards Hill could impliedly have passed to Mr Hall by his 1998 tenancy because the right to exercise them had been waived by the November 1984 agreement. The judge added that it was significant that neither Mr Hall senior nor (until 2006) Mr Hall junior ever asserted rights of common over Luckwards Hill and he referred to the grazing agreements. He said, however, that these last points were not in any way crucial to his decision.[29]Mr Hall’s argument was that it was not open to the judge to arrive at that decision. He said that the Committee was not a statutory body with statutory power to bind the commoners. He said that no commoner could have his commons rights waived without his prior approval and written consent. His father was admittedly aware of the meetings convened by the Committee but chose not to attend them and there was no question of his having agreed to the purported waiver by the Committee of his rights of common. He asserted that the waiver agreements did not have the requisite support, approval and consent of all the commoners: there was no evidence proving any of that. He submitted that the Committee simply did not have the authority to deal with the commoners’ rights in the way it claimed to have done. He accepted that the Committee had rights of management over the common land – for example, it could police whether anyone was exceeding his rights by grazing too many animals – but that was the limit of its powers. It had no power to waive or suspend the proprietary rights of the commoners.[30]Mr Hall’s point that the Committee was not a statutory body is correct but does not by itself mark the end of the inquiry. He did, however, in my view identify the real point in saying that whilst the Committee may well have had de facto powers of management – controlling the number of animals on the common, for example -- the relevant present question is whether it had any properly constituted authority to deal with each of the commoners’ proprietary rights and make effective waivers of them. That is an important distinction. By what authority can the Committee claim to have been entitled to waive the rights of any commoner who had not expressly authorised it to do so? Commons councils, committees or associations are, I understand (dare I say), quite common. Their activities will no doubt be driven by a core of public spirited enthusiasts. But on what legal basis can such an association purport to deal with the property rights of individual commoners? If they have the express authority of particular commoners to do so, no doubt they can bind those particular commoners. But how can they bind the others who disagree with, or simply decline to assent to, or take part in, the association’s activities? In the absence of evidence of how they can claim to bind such others, the inference must be that ordinarily they cannot. It is because of the impotence of such associations in such respects that Part 2 of the Commons Act 2006 provides for the establishment of statutory commons councils which will have such powers, the range of potential powers including, by section 31(4), the power to make rules having the effect of “limiting or imposing conditions on the exercise of rights of common over … the land for which the council is established.”[31]The evidence before the court in the present case did not show that the Powick Committee has any such powers. There was not even any evidence that it has any sort of constitution. There was, in particular, no evidence that it is an association of which everyone with rights of common in the area is a member and whose membership binds them together on a contractual basis empowering the Committee to deal with their proprietary rights in the way that it has purported to do. The evidence went no further than asserting that it had annual meetings that were advertised. It did not even explain whether the advertisements explained the agenda for the next meeting. The proposition that a Committee of that sort has the authority to waive or suspend any and every commoner’s proprietary rights is in my view an impossible one. There was no evidence before the judge that entitled him to conclude that the Committee did have such authority or that there was an implied agreement between all the commoners conferring such authority or that it was held by them as having such authority. The evidence went no further than showing that the Committee had held itself out as having the requisite authority, but that is not good enough. His decision that the Committee had the claimed authority was in my judgment wrong.[32]I did at one time consider that it might be said in support of his decision that the validity of the 1984 waiver agreement could be sustained by an appeal to the presumption of regularity. I have, however, concluded that that doctrine provides no salvation for the respondents. Before it might have any role to play, the respondents would at least have had to prove that the Committee operated under a constitution that, subject to due compliance with its particular formalities, would have enabled all commoners to be bound by a decision to waive or suspend their rights. If the evidence had got that far, then any question as to whether there had been strict compliance with any particular formalities might perhaps be answered by the application of the presumption. But there was no such evidence. The respondents’ case in this respect rested on nothing more than the production of the waiver agreements, being agreements which pose, but do not attempt to answer, the question as to the authority of the Committee to make them. On the face of it, the Committee had none and none was proved by the evidence.[33]That being what I regard as the general position, the more particular question on this ground of appeal was whether, by the time of the grant of Mr Hall’s tenancy agreement in July 1998, the rights of common attached to the Farm had been waived. There was no evidence either that Mr Hall senior or the trustees conferred any authority on the Committee to waive them. Even assuming that there had been evidence that the trustees had conferred such authority (and there was not), as regards Mr Hall senior the position on the evidence was even more difficult. That is because the 1984 waiver agreement was only purportedly made on behalf of those whose names had been entered in the “Common Rights section” of the local register. That included the trustees, but not any tenants such as Mr Hall senior who claimed through them. Mr Harrison-Hall’s argument was that that did not matter. He said that the waiver of the trustees’ rights (if that is what had happened) would also operate to waive those of the tenant claiming through them, the tenant’s right as against the trustees to enjoy the rights of common being no more than a contractual right entitling him to sue them for damages. That argument is, with respect, also wrong. A landlord cannot, by his own unilateral act, deprive his tenant of the benefit of an interest in land appurtenant to the property comprised in the tenancy. A tenant’s rights do not rest merely in contract, they also give him an interest in land.[34]Mr Harrison-Hall made much of the fact that Mr Hall senior knew of the Committee’s meetings but chose not to attend them; that, so the judge found, neither he nor Mr Hall junior had asserted any right of common until the latter did in 2006; and that both had entered into grazing agreements said to be inconsistent with their having any rights of common. Whilst these might be good jury points, they take the respondents nowhere. Non use of a right of common will not, without more, amount to an abandonment or surrender of it. The Committee had no authority to deal with Mr Hall senior’s rights of common and his non-attendance at meetings did not give it any authority. And the taking of the grazing licences was not inconsistent with the right of common: they gave a greater right than the right of common (unlike the latter, they did not limit the number of animals that could be grazed), although their enjoyment admittedly depended on the other commoners not seeking to exercise their rights at the same time. If the points go anywhere, they may perhaps suggest a basis for an argument that Mr Hall senior and his son acquiesced in the purported waiver of the rights of common and became at some point estopped from denying it. But no such case was pleaded, nor was it the subject of a finding by the judge and it is not apparent to me that any such case could have been made good. I do not regard these points as relevant for the disposition of the appeals. The judge placed no reliance on them.

Conclusion

[35]I consider that the judge was wrong on both grounds on which he decided the preliminary issue against Mr Hall. I would allow Mr Hall’s appeal in both actions, set aside the judge’s orders and invite the parties’ representations as to what further orders this court should make. Lord Justice Toulson :[36]I agree.

Lord Justice Rix :

[37]I also agree.