Dance v Savery & Ors [2011] EWHC 16 (Ch)

Case No 8BS30788[2011] EWHC 16 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BRISTOL DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 January 2011
Before
MR. JUSTICE KITCHIN
Between
SEMAJ JOHN DANCEClaimantROBERT SAVERYFirst DefendantPHILIP GEOFFREY FRENCHSecond DefendantsTHOMAS KNYVETON DARNLEY ANDERSONDefendantROBERT SAVERYDefendantMICHAEL THOMAS WHEELER HARTDefendantMARY CHARMIAN BATEMANDefendantMARK TRENEERThird DefendantsREBECCA DANCEDefendantSEMAJ DANCE (JUNIOR)Defendant
Mr Mark Wonnacott (instructed by Eric Cowsill) for ClaimantMr Jonathan Small QC (instructed by Harold Michelmore) for First and Second DefendantsHearing Hearing dates: 29, 30 November 2010
JudgmentMR. JUSTICE KITCHIN :Introduction
[1]This is the trial of an issue concerning the proper interpretation of an entry on the register of common land.[2]Entry 108 against register unit no. CL 161 (“CL 161”) of Brent Moor Common (“Brent Moor”) in the South Hams District of Devon reads:
“To graze 56 bullocks or ponies and 224 sheep on the part of the land comprised in this register unit hatched red (horizontally and diagonally) and lettered A on the register map”
[3]It is the case of the claimant (“Mr Dance”) that this is a right which he enjoys and which is separate from the rights which he has over any other common land.[4]It is the case of the first defendant (“Mr Savery”) that this is a right which is split over two other parcels of common land, namely register units no. CL 162 (“CL 162”) of Dean Moor, also in the South Hams District of Devon, and no. CL 164 (“CL 164”) of the Forest of Dartmoor (“the Forest”).[5]Before addressing the rival submissions of these parties I must first explain something of the factual background and the relevant legal framework.

Background

[6]Brent Moor and Dean Moor both adjoin the Forest. On 18 June 1969 Mr Dance made an application to the Devon County Council (the relevant commons registration authority for Dartmoor) for the registration of certain rights of common pursuant to section 4 of the Commons Registration Act 1965 (“the 1965 Act”). So far as relevant, the application identified the land over which the rights were exercisable as CL 162 of Dean Moor with straying rights on to CL 161 of Brent Moor, and described the claimed rights of common as a venville right to graze 56 bullocks or ponies and 224 sheep (“the defined livestock”) over CL 164 of the Forest and straying rights on CL 161 of Brent Moor. The application also identified the land to which the rights were attached as Dockwell farm.[7]Pursuant to this application, the Devon County Council made a series of provisional entries on the register under section 4 of the 1965 Act. Again, so far as relevant, they provided as follows.[8]Entry 821 in respect of CL 164 of the Forest identified the right of common as a right to graze the defined livestock over CL 162 of Dean Moor and CL 164 of the Forest together with a straying right on to CL 161 of Brent Moor.[9]Entry 77 in respect of CL 162 of Dean Moor mirrored entry 821. It identified the right of common as a right to graze the defined livestock over CL 164 of the Forest and CL162 of Dean Moor together with a straying right on to CL 161 of Brent Moor.[10]Entry 108 in respect of CL 161 of Brent Moor mirrored both entries 821 and 77. It identified the right of common as a right to stray the defined livestock on to CL 161 from C 162 of Dean Moor and CL 164 of the Forest.[11]Objections of various kinds were made to these provisional entries under section 5 of the 1965 Act and in due course they were all referred to the same Commons Commissioner, Mr A. A. Baden Fuller.[12]The Commissioner addressed objections to over 1,000 provisional registrations made in respect of CL 164 of the Forest (including entry 821) at a series of hearings in Plymouth from April to October 1982. At this time there was some doubt as to the precise boundary between the Forest, which belonged to the Duchy of Cornwall, and the waste of three of the adjoining manors, Brent Moor, Ugborough Moor and Harford Moor. But there was no doubt that the whole of CL 164, an area some ten miles long by three miles wide, was part of the Forest and so, in his decision in writing dated 30 June 1983, the Commissioner confirmed that the Duchy should be registered as its owner. As for the claim by Mr Dance to the venville right to graze the defined livestock over CL 164 of the Forest and CL 162 of Dean Moor, this was conceded by the Duchy in respect of CL 164 and so the Commissioner also confirmed Mr Dance’s right described in provisional entry 821. It therefore reads in material part:
“To graze [the defined livestock] over the whole of the land comprised in this register unit, CL 162, … together with straying rights onto … CL 161 …”
[13]Some two years later the Commissioner came to address the objections to the provisional entries in respect of CL 162 of Dean Moor and CL 161 of Brent Moor and his findings are set out in two decisions in writing respectively dated 12 July and 15 November 1985.[14]Although an objection had been lodged to entry 77 in respect of CL 162 of Dean Moor, it seems that by the time of the hearing it was not actively pursued. Nevertheless the Commissioner addressed it from pages 11 to 13 of his decision. He explains that Mr Dance acquired Dockwell farm from Lord Churston in 1949, that at the time of the conveyance Lord Churston owned CL 162 and so had the power to grant rights of common over it and that the rights claimed by Mr Dance to be attached to Dockwell farm were probably granted by Lord Churston at that time. The Commissioner therefore confirmed Mr Dance’s right described in entry 77. However, since it was identified as a split right with CL 164 of the Forest, that is how it remained. It therefore reads in material part:
“To graze [the defined livestock] over the whole of the land comprised in this register unit, CL 164 …. together with straying rights on to ….CL161 ….”
[15]The decision of the Commissioner relating to CL 161 of Brent Moor concerned over 130 provisional entries, including 108. As I have mentioned, a major issue concerned the extent to which the Forest extended into CL 161 and the register units of the other neighbouring commons of Ugborough Moor and Harford Moor. The Commissioner addressed the question of the boundary of the Forest at page 11 of his decision. He found that a triangle of land encompassing the northern part of each of these three commons had from time immemorial been treated as part of the Forest for ownership and other purposes. He then identified the part of CL 161 falling within this triangle as part A, defined it as “the Forest Part” and confirmed that it was owned by the Duchy. The remainder, identified as part B, had always been part of the manor and the Commissioner duly confirmed that it was owned by the South West Water Authority, as successor to the Plymouth Corporation.[16]The Commissioner then considered the rights over part A, the Forest Part of CL 161. He took the view that his decision as to ownership was reason enough for equating as far as he possibly could the provisional entries in respect of part A of CL 161 with the corresponding confirmed rights over CL 164. But he faced the difficulty that few of the confirmed entries in respect of CL 164 had corresponding provisional entries in respect of CL 161. Further, he had no power to direct that part A of CL 161 be transferred to CL 164 or to direct that any of the confirmed entries in respect of CL 164 be inserted into the rights section of CL 161 for the first time. He put it this way at pages 11-12:
“In my CL 164 decision dated 39 June 1983 after a hearing in 1982, I concluded that a number of registrations in such proceedings disputed had been properly made, the rights having been recognised by the Duchy, as being attached to lands in Venville, and not disputed by anyone. Mr Sturmer [for the Duchy] said that the corresponding Unit Land [CL 161] registrations were similarly recognised as being in Venville. This is not enough to enable me to equate for all purposes under the 1965 Act, the Forest Part with the adjoining CL 164 land, because of the very many CL 164 Rights Section registrations which in my 1983 CL 164 decision I decided were properly made, only very few have corresponding registrations in the Unit Lands Rights Section. I have no power (it was not at this Unit Land hearing suggested I have) to direct that the Forest Part of the Unit Land be removed from the Land Section of this CL 161 Register and by way of transfer included in the CL 164 Land Section, or to direct that any of the CL 164 Rights Section registrations shall be inserted in the Unit Land Rights Section for the first time. So by the Commons Registration Act 1965 the historic connection between the Forest Part of the Unit Land and the rest of the Forest of Dartmoor comprised in CL 164 has forever in part been broken. The Act nowhere makes this result altogether unavoidable; but even with the hindsight I have as a result of this Unit Land hearing, I am unable to think of any way by which it could have been prevented by the Duchy or anyone else except at trouble and expense disproportionate to the value of any benefit which could have resulted.”
[17]A little later in his decision, the Commissioner came to the provisional entries in respect of rights to stray, including 108, so far as applicable to part A, the Forest Part of CL 161. The Duchy apparently objected to all of these save four, one being 108, each of which corresponded to a confirmed entry in respect of CL 164. The Commissioner concluded that each of these four, modified by substituting “graze” for “stray”, was properly made as regards part A, the Forest Part. As he said at page 13 of his decision:
“Next I consider the registrations of “rights to stray” specified in Part I of the First Schedule hereto so far as possibly applicable to the Forest Part. Mr Sturmer [for the Duchy] insisted they were not properly made at least as regards those to which the Duchy had made an objection, that is as regards all except Nos 65, 68, 92 and 108; accordingly in the absence of any evidence or argument in support of them, my decision is that all these registrations except as aforesaid were as regards the Forest Part not properly made. As regards the excepted registrations I have no note or recollection of Mr Sturmer saying anything about them; however, because the CL 164 registrations at Entry Nos 575, 580, 592 and 821 corresponding to them were by my CL 164 decision confirmed with the modifications therein set out, my decision is that these four Unit Land registrations modified by substituting “graze” for “stray” were properly made as regards the Forest Part.”
[18]This conclusion was entirely consistent with the Commissioner’s earlier decision concerning CL 164 of the Forest. There he reasoned that a right of common by reason of vicinage, as he termed it, was not registrable under the 1965 Act. But he also expressed the view that the words “right to stray” were a popular way of describing a right of common by reason of vicinage and, in the light of a concession by the Duchy that the word “stray” could be modified to “graze”, he modified the “stray” entries accordingly.[19]Entry 108 in respect of CL 161 of Brent Moor was duly amended. The word “stray” was changed to “graze”; the right was limited to that part of CL 161 marked A on the register map; and the references to CL 162 and CL 164 were deleted. It was confirmed in the form set out at [2] above. The legal framework The 1965 Act

The legal framework

[20]The background to the 1965 Act is well known. So far as material to the matters I have to decide, it was intended to establish definitive registers of common land and to record details of rights of common. Where land was eligible to be registered as common land then failure to register it would result in the land being deemed not to be common land; similarly, failure to register rights of common which were eligible for registration would result in the rights ceasing to be exercisable. Registers were drawn up by commons registration authorities and applications were invited for the provisional registration of common land and rights of common from January 1967 to January 1970. Section 3 provided in relevant part: 3. The registers (1) For the purposes of registering such land as is mentioned in section 1(1) of this Act and rights of common over and ownership of such land every registration authority shall maintain: (a) a register of common land; and (b) a register of town or village greens; and regulations under this Act may require or authorise a registration authority to note on those registers such other information as may be prescribed. ….

(b) a register of town or village greens;

[21]The Commons Registration (General) Regulations 1966 (“the 1966 Regulations”) prescribed the information to be noted on the registers. Regulation 4(7) addressed the rights section in these terms: (7) the rights section of each register unit shall be in Form 3, and shall contain the registrations of the rights of common registered as exercisable over the land comprised in the land section of the register unit, or any part thereof, particulars of the persons on whose applications the rights were registered and the capacities in which they applied, descriptions of the land (if any) to which the rights are attached, and any such other information as may by any regulation made under the Act be required or authorized to be entered therein.[22]Section 4 required the registration authorities to register any rights of common upon properly made applications but any entries so made remained open for objection until 31 July 1972.[23]If an objection to a provisional registration was made and maintained then, under section 5, the registration authority was required to refer it to a Commissioner for determination. Under section 6, the Commissioner was required to inquire into the objection and either to confirm the registration, with or without modifications, or to refuse to confirm it; if confirmed it became final and if refused it became void, in each case subject to appeal by way of case stated to the High Court on a point of law within six weeks: 6 Disposal of disputed claims (1) The Commons Commissioner to whom any matter has been referred under section 5 of this Act shall inquire into it and shall either confirm the registration, with or without modifications, or refuse to confirm it; and the registration shall, if it is confirmed, become final, and, if the confirmation is refused, become void— (a) if no appeal is brought against the confirmation or refusal, at the end of the period during which such an appeal could have been brought; (b) if such an appeal is brought, when it is finally disposed of. …. (a) if no appeal is brought against the confirmation or refusal, at the end of the period during which such an appeal could have been brought; (b) if such an appeal is brought, when it is finally disposed of.[24]If no objection was made to a provisional registration or if all objections were withdrawn then the registration automatically became final. Under section 10 of the 1965 Act, a final registration was conclusive of the matters registered: 10 Effect of registration The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only.[25]This was important. It meant that a reader of the register could determine the position in relation to any matters required to be registered without any knowledge of the previous history of the land, as Lord Denning MR explained in Corpus Christi College v Gloucester County Council [1983] QB 360 at 368-369.[26]There was only limited scope for alteration of the register thereafter. It could be amended if circumstances changed and, for example, the land ceased to be common land or if the registered rights were extinguished or released. It could be rectified if the registration had been procured by fraud or if the register had been amended in error.[27]Within this framework, section 15 made specific provision for the quantification of grazing rights: 15 Quantification of certain grazing rights(1) Where a right of common consists of or includes a right, not limited by number, to graze animals or animals of any class, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals, or animals of that class, than a definite number.(2) Any application for the registration of such a right shall state the number of animals to be entered in the register or, as the case may be, the numbers of animals of different classes to be so entered.(3) When the registration of such a right has become final the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine.

The 2006 Act

[28]In practice the 1965 Act proved to have a number of flaws. It was perceived to be ill drafted, the register too conclusive and the power to amend it too narrowly confined. Accordingly it was repealed by the Commons Act 2006 (“the 2006 Act”). Section 1 requires each commons registration authority to continue to keep a register of common land. Section 3 addresses the content of the registers and reads, so far as relevant: 3 Content of registers (1) The land registered as common land in a register of common land is, subject to this Part, to be— (a) the land so registered in it at the commencement of this section; and (b) such other land as may be so registered in it under this Part … (3) The rights of common registered in a register of common land or town or village greens are, subject to this Part, to be— (a) the rights registered in it at the commencement of this section; and (b) such other rights as may be so registered in it under this Part. (4) The following information is to be registered in a register of common land or town or village greens in respect of a right of common registered in it— (a) the nature of the right; (b) if the right is attached to any land, the land to which it is attached; (c) if the right is not so attached, the owner of the right. (5) Regulations may— (a) require or permit other information to be included in a register of common land or town or village greens; (b) make provision as to the form in which any information is to be presented in such a register. ….. (a) the rights registered in it at the commencement of this section; and (b) such other rights as may be so registered in it under this Part. (a) the nature of the right; (b) if the right is attached to any land, the land to which it is attached; (c) if the right is not so attached, the owner of the right. (a) require or permit other information to be included in a register of common land or town or village greens; (b) make provision as to the form in which any information is to be presented in such a register.[29]The Commons Registration (England) Regulations 2008 (“the 2008 Regulations”) make provision for the information to be entered. Regulation 6 provides in relevant part: (4) the rights section of each register unit must be in Form 3, and is to specify- (a) the rights of common registered as exercisable over the land comprised in the land section of the register unit, or any part of that land; (a) the rights of common registered as exercisable over the land comprised in the land section of the register unit, or any part of that land;[30]Once again, the register is deemed to be conclusive (section 18) but subject to wider powers of correction (section 19). The parties both took me to section 18 which reads: 18 Conclusiveness(1) This section applies to land registered as common land, or as a town or village green, which is registered as being subject to a right of common.(2) If the land would not otherwise have been subject to that right, it shall be deemed to have become subject to that right, as specified in the register, upon its registration.(3) If the right is registered as attached to any land, the right shall, if it would not otherwise have attached to that land, be deemed to have become so attached upon registration of its attachment.(4) If the right is not registered as attached to any land, the person registered as the owner of the right shall, if he would not otherwise have been its owner, be deemed to have become its owner upon his registration.(5) Nothing in subsection (2) affects any constraint on the exercise of a right of common where the constraint does not appear in the register.(6) It is immaterial whether the registration referred to in subsection (2), (3) or (4) occurred before or after the commencement of this section.

The substantive issues

[31]Mr Wonnacott, who appeared on behalf of Mr Dance, submitted that the right described in entry 108 is a stand alone right, and not a right which is split across land in any other register unit. Where a right is split then the register invariably says so, as illustrated by entry 821 in respect of CL 164 of the Forest and entry 77 in respect of CL 162 of Dean Moor. The meaning of the entry is plain and the entry itself is conclusive.[32]Mr Wonnacott’s secondary submission was that if and in so far as it is permissible to look at other material then the decision of the Commissioner in respect of CL 161 of Brent Moor makes clear that he intended the right to be a separate right because he specifically turned his mind to the question of whether the rights over part A of CL 161 should be registered as shared rights with CL 164 and he made a positive decision to register them as stand alone rights which it is now 25 years too late to appeal.[33]Mr Small QC, who appeared on behalf of Mr Savery, submitted that there is no issue as to whether Mr Dance had in fact acquired a right of common over part A of CL 161 prior to 18 June 1969 when he made his application. Entry 108 provides a right to graze the defined livestock over part A of CL 161 and is not disputed. The issue is when and in what circumstances the admitted right of grazing may be exercised.[34]Mr Small developed his submission as follows. First, he contended that what Mr Dance applied for originally was a right to stray on to Brent Moor. That equated to a right to graze on Brent Moor but limited in terms of the number of livestock having regard to the duplicated claims of rights over CL 162 of Dean Moor and CL 164 of the Forest. If Mr Dance had an independent right to graze the defined livestock over part A of CL 161 then he lost it by failing to apply for such a right by the relevant date. Accordingly the Commissioner’s decision to admit the rights in entry 108 by substituting the word “graze” for “stray” must have been subject to the qualification that Mr Dance could not graze any greater number of livestock on Part A of CL 161 than he would have been able to by sharing his rights over CL 162 of Dean Moor and CL 164 of the Forest. If the Commissioner purported to confirm a full independent right then this was the result of a plain mistake.[35]Second, he submitted that the 1965 Act required an applicant to identify particulars of the right of common and of the land over which it was exercisable. This Mr Dance duly did by identifying a right to stray the defined livestock over CL 161. However, the precise manner of the exercise of the right is a different matter. Hence section 15 of the 1965 Act required that the maximum number of animals be entered on the register. It did not require any other limitation or qualification to be entered. Further, although section 15 of the 1965 Act has been repealed, section 18(5) of the 2006 Act provides that nothing in section 18(2) affects any constraint on the exercise of a right of common where the constraint does not appear in the register. Important qualifications to rights of common are, for example, the time of year at which they may be exercised. A split right is no different in principle and need not be entered on the register.[36]Finally, Mr Small submitted that in this case one need refer back no further than the application and the decision of the Commissioner. These show that Mr Dance was not originally claiming an independent right to graze the defined livestock on part A of CL 161 and that the Commissioner did not intend to confirm that Mr Dance had any such right.[37]In considering these rival submissions it is convenient to begin by considering how a right to graze a limited number of animals over two or more register units was dealt with under the 1965 Act. Such rights have by their nature a geographical element, namely a right to graze over a number of different register units and a numerical element in that the total number of animals that may be grazed over all the register units is restricted. But they presented a difficulty under the scheme established by the 1965 Act because this was devised on the basis that each register unit was to be self contained. The 1966 Regulations and the model entries applicable to the registration of a right of common contemplated the particulars of the land over which the right was exercisable as being either the whole of the land comprised in a register unit or a part of that land. There was no provision for recording that the right extended to land comprised in some other register unit.[38]Nevertheless, it is clear that provisional registrations of rights to graze often did refer to other register units and this meant that the Commissioners had to decide how to deal with them. The approach they took was to regard such references as convenient because they gave notice to a reader of the register that the right was also being claimed over other units, but otherwise surplus to the registration and of no legal effect. Any right claimed over another register unit would have to be registered in respect of and addressed in the context of that other unit. It was explained in this way by the Chief Commons Commissioner in his decision dated 11 February 1981 in Re Pickup Bank Height 220/D/229-230:
“I can appreciate that it may serve a useful purpose in indicating that a right exercisable over the land comprised in Register Unit No. CL X is also registered in respect of the land comprised in Register Unit No. CL Y and Register Unit No. CL Z, but any right there may be in respect of the land comprised in Register Units Nos. CL Y and CL Z must be sought in those Register Units and is not conferred, reinforced or in any way affected by the entry in Register Unit CL X .”
[39]Exactly the same approach was taken by the Commissioner in his decision in relation to CL 164 of the Forest. At pages 19 to 20, in a section entitled “References in one Register Unit to another Unit” he said:
“Having regard to the sections of the Act relating to Objections and to inquiries by a Commons Commissioner and having regard to the Regulations made under the Act, it would be extraordinary if a person connected with one and only one Register Unit was by some proceedings and of which he had no notice and had no right to be heard, adversely bound ….. In this decision relating to the Unit Land (CL 164) I disregard references to other register units altogether unless for some reason, eg some knowledge of the state of the register relating to these other register units I consider it convenient to make a correction which sooner or later must be made by somebody. And I record that if for convenience of grammar I have directed some modification which apparently validates some registration in another Unit, no such validation is by me intended.”
[40]In my judgment the approach the Commissioners took was correct. The inclusion in the particulars of a right of common in respect of one register unit of a purported right to graze over another unit could not confer any right over that other unit under the 1965 Act. Any person claiming a right of common over a register unit was required to make an application for the provisional registration of that right in the rights section of the register relating to that unit. Such provisional registration then became open to objection under the terms of the 1965 Act in the manner I have described.[41]This brings me to the second aspect of a split right, namely the numerical limit on the total number of animals which may be grazed. Here the Commissioners recognised that the right to graze a defined number of animals might be limited by the particular circumstances in which the right came into existence. So, for example, it might be subject to customary constraints, such as the times of the year at which stock might be turned out; or it might be the case that the right subsisted over two or more units and the limit applied to them all. They took the view that the possibility of such restrictions was specifically contemplated by section 15 of the 1965 Act and it mattered not whether they were referenced on the register.[42]This aspect was also addressed by the Commissioner in his decision in relation to CL 164 of the Forest. As he said at pages 26-27:
“Section 15 uses the words “treated as exercisable in relation to no more animals…. than a definite number”; this does not I think mean that when a number is inserted on the register pursuant to the section, the owner of the right thereafter has under section 10 the right in all circumstances to graze that number of animals. In my view section 15 does no more than provide an upper limit. If anybody wishes to claim that the number of animals grazed by anyone at any time is, notwithstanding that it is less than the upper limit, excessive, his right to take legal proceedings is unaffected by the 1965 Act, except to the extent that section 10 is applicable. It may be therefore that in this case and in many other cases the number put on the register pursuant to section 15 may be of little practical consequence. …. I construe section 15 showing an intention by Parliament to abolish levancy and couchancy; but I do not think it was the intention that any Court who should be concerned with a registered right of common should be bound under section 10 of the Act to assume that the right owner could graze at all times and in all circumstances the number of animals mentioned on the register without regard to the circumstances in which the right came into existence; the object of the Act is I think, to provide a register of rights, not to provide a register of regulations which would determine every conceivable dispute which might arise as to the exercise of rights. …. When as here in Dartmoor many registrations in one Register Unit contain cross references to other Units, indicating that the registrations were made pursuant to an application made in one document, it may be possible to infer that the applicant thought he was registering one right which subsisted over two Units and not two rights, one over one Unit and another over another Unit. Whether the rights so registered are one or two rights must I think be determined by the Court or other tribunal who has to consider whether the person entitled is or is not at any particular time or in any particular circumstances grazing excessively and in a manner to which either the owner of the land or the owners of other rights can properly object; As I see it the court or tribunal although it will not be bound by, may if it thinks fit pay attention to, words in the register which for reasons under a separate heading I regard as surplusage. It may be that as a result of decisions by Commons Commissioners, there will be registrations say, of a right to graze x cattle over one Register Unit and to graze y cattle over an adjoining Unit (rights attached to the same land); in my view it will not follow that such person can lear x + y cattle across the boundary relying on some supposed right of vicinage; there is no reason why rights over two commons should not be so connected as to require the animals on one for numerical purposes to be treated as being grazed on both. In other cases elsewhere in England I have been told that this is the local understanding and have at the request of those concerned modified registrations so that the understanding is therein expressed; but by occasionally doing this I am not saying that such an understanding (a sort of bringing of animal numbers hotch-pot) may not in a proper case be implied without being in the Register expressed.”
[43]Mr Wonnacott submitted that the Commissioner’s approach was wrong in the light of Bettinson v Langton [2001] UKHL 24, [2002] 1 AC 27. In that case the House of Lords held that section 15 transformed grazing rights limited by levancy and couchancy into grazing rights for a fixed number of animals and that these registered rights could be severed from the land to which they were attached. Mr Wonnacott focused on the following passage in the speech of Lord Scott:
“The conclusion is, in my opinion, inescapable that subsection (3) [of section 15] transformed the right, on registration, from being a right limited by levancy and couchancy to being a right for a fixed number of animals. That had been the intention of the Royal Commission whose recommendation to that effect was implemented by section 15. I am unable to accept Mr Chapman’s argument that section 15(3) simply imposed a cap on the number of animals levant and couchant that could be grazed. If that were right, the levancy and couchancy limitation would, subject to the cap, have remained. Whatever else section 15 may or may not have done, it plainly, in my opinion, got rid of levancy and couchancy as a measure of the number of animals that, post registration, could be grazed.”
[44]Accordingly, Mr Wonnacott continued, the register was conclusive as to the number of animals that could be grazed.[45]In my view Mr Wonnacott seeks to read too much into the use by Lord Scott of the word “fixed”. The issue before the House of Lords was whether a levancy and couchancy limitation on the number of animals that could be grazed had been removed by section 15 of the 1965 Act and, if so, whether the right to graze could be severed from the land to which it had been attached. The House of Lords was not concerned with the issue before me, namely whether a right to graze a defined number of animals might be limited by customary restraints or because the right itself was split between two units.[46]In my judgment the approach of the Commissioners to section 15 of the 1965 Act was again correct and entirely consistent with their approach in relation to the need to enter on the register in relation to one unit a reference to another unit where the claimed right was split between the two. Indeed it would be surprising if the omission of unnecessary information as to a right claimed over another unit could have led to a final registration which conferred an unqualified right to graze when no such right had previously been enjoyed.[47]It also follows that it cannot be inferred from the Commissioner’s decision in relation to entry 108 that he intended to confirm an absolute and independent right to graze the defined livestock on part A of CL 161; to the contrary, it is apparent from the application and the declared approach and reasoning of the Commissioner in these related decisions that Mr Dance never claimed to be entitled to any such independent right and the Commissioner was not intending to confirm one. It is certainly true that in the passage of his decision to which I have referred at [16] above, the Commissioner regretted his inability to direct that part A of CL 161 be transferred to CL 164 or to direct that the rights confirmed in respect of CL 164 be entered against part A of CL 161 with the result that the historic connection between part A of CL 161 and the Forest had, as he put it, forever in part been broken. But nothing here specifically concerned split rights or suggests any intention to adopt an approach in any way different from that I have described.[48]I should also say a word about the decision of the Commissioner in relation to entry 77 in respect of CL 162 of Dean Moor. As I have explained at [14] above, the Commissioner recorded in that decision how Mr Dance acquired Dockwell farm and the rights attached to it. But I do not believe this leads to the conclusion that Mr Dance enjoyed two independent rights to graze the defined livestock, one over CL 162 and the other over CL 164 and part A of CL 161. In my judgment the best evidence of the true position is that Mr Dance clearly understood that his right to graze the defined livestock was split over all three register units and so made his application for registration of his rights of common in the way that he did.[49]It follows that under the 1965 Act the right described in entry 108 in respect of part A of CL 161 of Brent Moor was not a stand alone right. It was a right which was split over CL 164 of the Forest and CL 162 of Dean Moor.[50]That brings me to the position under the 2006 Act. As has been seen, section 1 requires each commons registration authority to maintain the registers established under the 1965 Act and section 3(3) provides that the rights of common registered in a register of common land are those rights registered at the date of commencement and such other rights as may be registered under the 2006 Act. Importantly, the 2006 Act did not purport to increase rights or to confer rights where none had existed prior to the date of commencement.[51]This conclusion is further supported by the other provisions of section 3. Hence subsection (4) requires the information to be registered in respect of common land to include the nature of the right. So also, regulation 6(4)(a) of the 2008 Regulations requires the rights section of each register unit to specify the rights of common registered as exercisable over the land comprised in the land section of the register unit or any part of it. I recognise that Model Entry 13 which is concerned with deregistration and exchange does include in the register entry in respect of the replacement land a reference to the relevant register entry in respect of the release land. But I do not understand the regulations to include any general requirement that entries made prior to the date of commencement must be amended to specify rights claimed over any other register units or to identify limitations arising from split rights.[52]As for section 18 of the 2006 Act, this, like section 10 of the 1965 Act, makes provision for the conclusiveness of the register. But this is subject to subsection (5) which preserves any constraint on the exercise of a right of common even though such constraint does not appear on the register. In my judgment such constraints include those arising from local custom and those inherent in rights which are split between two or more register units.

Conclusion

[53]Entry 108 means that Mr Dance has a right to graze the defined livestock over part A of CL 161 of Brent Moor in so far as he is not already grazing the same livestock over neighbouring register units CL 162 of Dean Moor or CL 164 of the Forest.