REF/2005/1313
REF/2006/1632

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Meldale Limited

APPLICANT

and

Ludgershall Parish Council

RESPONDENTS

Property Address: Land on the west side of High Street, Ludgershall
Title Number: BM253274 and BM66944

Before: Mr Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Aylesbury County Court
On: Tuesday 17th to 20th July 2007

Applicant Representation: 	Mr Patrick Darby, of Counsel, instructed by Messrs Lodders Solicitors
Respondent Representation: 	Mr Christopher Heather, of Counsel, instructed by 	Messrs Benhams Solicitors

DECISION
___________________________________________________________________________

KEYWORDS: Right of way acquired by prescription - doctrine of lost modern grant – whether acquired for all purposes or limited to agricultural purposes only – whether abandoned - Ludgershall Inclosure Act 1777 - Ludgershall Inclosure Award 1778 –Natural Environment and Rural Communities Act 2006, section 67(5) – Inclosure Act 1857, section 12 - Commons Act 1876, section 29  

Cases referred to: Tehidy Minerals v. Norman [1971] 2 OB 528; Angus v. Dalton (1877) 3 Q.B.D. 85; (1878) 4 Q.B.D. 162; (1881) 6 App.Cas. 740; Gotobed v. Pridmore (1970) 115 SJ 78; Williams v. Isherwood (1983) 45 P. & C.R. 235 

INTRODUCTION
1.	The Applicant, Meldale Limited (“Meldale”) is the registered proprietor of certain freehold land on the west side of the High Street, Ludgershall lying opposite the Old School.  The parcel of land in question is registered at HM Land Registry under title number BM253274 (“the Meldale Land”).  It originally formed part of a larger parcel of land which in these proceedings as plot 17 (“Plot 17”).  Plot 17 was subdivided in 1978 when the area to the north comprising a parcel of land which included Five Bells House was sold.  The parcel comprising the Meldale Land was  retained until July 2000 when it was sold to the predecessors in title to Meldale.  Subsequently on 12th June 2003 Meldale was registered as proprietor of that parcel.

2.	The Respondents are Ludgershall Parish Council (“the Council”) and they are the registered proprietors of two freehold titles which together form what has been described as a doughnut-shaped village green at Ludgershall (“the Green”).  The relevant title for the purposes of the present proceedings is that registered under title number BM66944.  On 27th October 1977 the Green was also registered as a Village Green in the Register of Town or Village Greens pursuant to the provisions of the Commons Registration Act 1965, now prospectively repealed by the Commons Act 2006.

3.	Meldale seeks the registration of a right of way for all purposes over part of the Green in order to access the Meldale Land apparently in order to facilitate the construction of a dwelling house and garage thereon.

4.	Two applications have been made by Meldale to HM Land Registry each of which seeks to register the right of way along alternative routes across part of the Green.

THE APPLICATIONS
The First Application
5.	Form AP1 provided to HM Land Registry is dated 17th February 2005 and seeks to register the burden of a prescriptive right of way across the area of land hatched in red on the plan annexed thereto.  I should state that the Notice Plan forwarded to the Council by HM Land Registry under cover of Form B13 shows the claimed right of way as land tinted blue (“the Blue Land”) and the Meldale Land as shown coloured pink.

The Second Application
6.	Form AP1 in respect of this application made by Meldale is dated 4th October 2006.  In this case the accompanying plan bears the reference YH35 and forms part of an exhibit to the expert witness report of Doctor Yolande Hodson dated 4th September 2006.  On this plan the alternative route sought across the Green by Meldale in order to access the Meldale Land is marked as access route number 15 as shown in pink on that plan (“Route Number 15”).  This has also been referred to during the course of these proceedings as the “Award Route.”  The Blue Land is shown on the same plan marked as access route number 16 (“Route Number 16”).  The claim made in the Second Application is based on the interpretation of the Ludgershall Inclosure Award 1778 (“the Award”) but coupled with the provisions of section 67(5) of the Natural Environment and Rural Communities Act 2006 (“the 2006 Act”). 

7.	In so far as the plans are concerned in order to avoid confusion I shall refer to the alternative claimed rights of way as Route Number 15 (or the Award Route) and Route Number 16 (or the Blue Land), respectively, by reference to exhibit plan YH35, hereinafter referred to this as “Plan YH35”.

A SUMMARY OF THE ISSUES
8.	The arguments have become more sophisticated since Meldale made the First and Second Applications.  Meldale claims the right to a prescriptive general right of way for all purposes over part of what is now the Green to and from the Meldale Land.  It is asserted that the rights have been exercised in respect of Plot 17 which formerly included a public house and farmhouse, known as Five Bells, such rights having arisen prior to the Award. 

9.	Meldale’s case is based upon the assertion that a Gate (“the Gate”) existed in one of two locations on the south-eastern side of Plot 17 at the date of the Award.  From that assertion Meldale invites the inference that there was a vehicular road or way across the Green to the Gate.  It is further submitted that that road or way was converted into a public highway by the Award and that status remained until the 2006 Act re-converted that road or way to a private right of way. 

10.	The Council objects to this claim on the basis that has never been any right of way serving the Meldale Land over the Award Route or the Blue Land as contended for, either public or private arising by way of an easement.  The Council submits that the Award did not create, preserve or evidence a right of way over the Green.  If such a right of way has existed, which is not accepted, it is submitted that it would have been acquired since the Award by way of prescription and at best would have been an easement acquired for agricultural purposes only and should be limited accordingly.  It is further asserted that even if any public rights were created, or preserved, by the Award they have since been abandoned. Similar arguments are raised in respect of any private right of way.  It is also submitted by the Council that the provisions of the 2006 Act are irrelevant to the Second Application. Further arguments are raised as to unlawfulness arising by virtue of the terms of the Act, and also the Inclosure Act 1857 and the Commons Act 1876.

11.	In order to evaluate the parties’ respective cases in respect of both Applications it is first necessary to consider the true construction of the provisions of the Ludgershall Inclosure Act 1777 (“the Act”) which preceded the Award, together with the Award itself, and also to have regard to the expert evidence and the evidence provided by various maps and plans, and in particular to the Gate shown at the south-eastern corner Plot 17 shown on the Ludgershall parish plan (“the Parish Plan”).  The date of this plan is uncertain but it is considered that it was probably drawn in about 1780 or 1782.  It seems to have been re-sealed and re-filed in 1782.  Extracts from the Parish Plan appears in two places in the exhibit bundle to Dr Hodson’s report, namely at YH27, and an enlarged version of part at YH22.  The latter indicates the south-eastern part of Plot 17 and the Gate in greater detail.  The schedule to the Parish Plan describes Plot 17 as the house and homestead owned by the Feoffees of the Bicester Poor the same being coloured pink on the Parish Plan – this apparently indicates that it was inhabited.  After having regard to the documentary evidence, which includes various maps and aerial photographs, it is then necessary to assess the oral factual evidence provided by various witnesses called by both sides

LIST OF ISSUES
12.	Counsel have helpfully agreed a list of issues for my consideration in this case.  They are by reference to various documents referred to during the course of the proceedings to which further reference will be made below.  I should state that I have slightly amended the format.  The issues are as follows:- 

The Award
(1)	Does the Blue Land conform to the route over the Green to the public highway from the Gate shown at the edge of Plot 17 as appears on the Parish Plan? 

(2)	Did a right of way exist at any time prior to the Award from the Gate at the edge of Plot 17 as shown on the Parish Plan over the Green to the highway?

(3)	If there was such a right of way, was it vehicular?

(4)	If there was such a right of way, had it been abandoned prior to the Award?

(5)	If there was an extant right of way at the date of the Award, was that private right of way converted into a public highway by the Award?

(6)	If the right of way was not converted into a public highway, has it subsequently been abandoned?
(7)	If the right of way became a public highway under the Award, was that highway converted into a private right of way for mechanically propelled vehicles on 2nd May 2006 by the operation of section 67(5) of the 2006 Act?

Lost Modern Grant
(8)	Was a right of way over the Green from the Applicant’s land to the public highway along the Route Number 16 acquired by the Applicant’s predecessors in title?

(9)	If so, for what purposes was the right acquired?

(10)	Has that right of way been subsequently abandoned?

(11)	If not abandoned, is the right of which registration is sought excessive with regard to the rights acquired?

THE TRUE CONSTRUCTION OF THE ACT AND THE AWARD 
13.	I now turn to the detailed provisions of the Act and the Award.  I am enjoined by Counsel for the Council to adopt a commonsense approach to the interpretation of both these documents. These where possible, should be construed in the same way unless it is impossible to do so.  The reason for this enjoinment is that there is perceived to be what has been described as a “tension” between the two documents in certain respects.

The Act
14.	There are a number of provisions of relevance in the Act. I have highlighted in italics a number of words and phrases.

	Recitals 
(1)	The First Recital provides that the Act concerns the inclosure of one open and common field called Ludgershall Field consisting of approximately 1,800 acres.

The Enacting Clause
	The Commissioners
(2)	This clause provides for the appointment of a number of named Commissioners for the purpose of dividing, allotting and Inclosing Ludgershall Field and Commonable Land – 

“…to and amongst the Proprietors of the said Field Tithes and Common Rights, in a due and fair Proportion... and according to their respective rights, and Interests therein, adjoining to their Respective Homesteads, Closes or Inclosed Grounds…and the same being so divided and allotted, shall, by the respective Proprietors thereof, be inclosed on or before 29th September 1777.”  

Thus, first the Commissioners (or any three of them) had to allot and divide the land in question, and, secondly, having so divided and allotted the land, then to inclose.

It is further provided that a survey be undertaken of Ludgershall Field prior to 1st August 1777, and that such a survey be reduced into writing and “…the number of acres, roods and perches belonging to each proprietor at the time such survey made shall be therein set forth and specified.”

	Roads to be set out
(3)	This clause deals with the crucial issue as to the provision of roads.  This clause provides as follows:-

“the said Commissioners and their successors, or any three or more of them shall and may, and they are hereby required, before any Allotment or Allotments shall be made, to ascertain, set out, and appoint, both public and private roads in, through and over the said Field with the Assizes and Breadths thereof so as all such Public Roads and Highways shall be and remain Sixty Feet broad at the least between the Ditches except Bridle and Foot Ways, in Case any such by the said Commissioners shall be set out…” 

	This clause therefore commences with reference to public and private roads in, through and over the area to be inclosed, and then develops that reference by stating that the public roads and highways shall be specified at a certain width, and it then excepts bridle and foot ways from that specification.  Thus, the Act defines three categories of ways, namely public roads and highways, bridle ways and footways.  It is submitted by the Council that it is only those ways  referred to in the Act (and the Award) with which the Commissioners are concerned.  Thus it is contended that private rights of way in the nature of easements do not fall within the compass of the Act.  I shall refer to the question of private roads and easements again below. 

(4)	The clause then makes further provision in the following terms:-

“and the said Commissioners, after they shall have so set out the said Public Roads, and caused the same to be marked and staked out, shall give or cause to be given Notice in some public News-Papers…Objections that may be made to any public Roads so set out, or omitted to be set out, and ascertained in Pursuance of this Act, and to hear and determine the same, together with the Resolutions of the Commissioners thereupon, shall be entered in the Minutes of the Proceedings of the Commissioners in a book kept for that Purpose; which said public Roads and Highways, so to be set out as aforesaid, shall at all Times forever thereafter be repaired and kept in Repair by, and at the Expense of such Person and Persons and in such Manner as the other Roads and Ways within the Township, Liberties, and Precincts of Ludgershall aforesaid were repaired and kept in Repair before the passing of this Act, and as by the Laws of the Realm the same ought to be repaired and kept; and that it shall not be lawful for any Person or Persons after the making of such new Roads or Ways to use any Roads or Ways, either public or private, over the said new Inclosures on Foot, or with Horses, Cattle or Carriages, other than such Roads as shall be ascertained, set out and appointed as aforesaid.”

	The last six lines of this clause provide for what has been called the “unlawfulness provision” the true construction of which is crucial to this case. I shall refer to this again, below. 

The Award
15.	It is now necessary to turn to the detailed provisions of this document.  Reference to this is rendered somewhat difficult as it contains no paragraph numbers.  It is necessary to refer to the individual paragraphs by reference to the pagination provided in Bundle A.  Again I have italicised the words and phrases to be construed.

	Page 1 of the Award – page 179 of the  Bundle A
	(1)	In this paragraph the statutory purpose of the Award is set out, namely

	“…for dividing inclosing assigning and allotting of the open and common field and commonable land lying within the liberties territory and precincts of Ludgershall.”

	Page 2 of the Award – page 180 of Bundle A
	(2)	Here the Award records that the survey and admeasurement of the field had been made before 1st August 1777 and then states: -

		“such survey and admeasurement containing in the whole 1,912 acres, 3 roods and 12 perches including the turnpike road and also the town green in Ludgershall aforesaid has been reduced into writing and the number of acres roods and perches belonging to each proprietor at the time of such survey made has been therein set forth and specified…”
Page 3 – page 181 of Bundle A
	(3)	This paragraph records that the Commissioners have:-

	“… ascertained set out and appointed both public and private roads in through and over the said field of the assizes and breadths thereof as herein more particularly described and they did after they had so set out the said public roads and caused the same to be marked and staked out also caused notice to be given in the Oxford Journal…”

Pages 4ff – pages 181Aff of bundle A
	(4)	The paragraph reproduced immediately below, and subsequent paragraphs (not reproduced here), contain the awards made to the various owners and proprietors mentioned thereafter.  The initial paragraph provides as follows:-

		“Now know ye that the said Commissioners parties to these presents in pursuance of the power and authority given to and vested in them in and by the said Act have set out divided and allotted and by these presents their award or instrument in writing and [fairly ingrossed] and written on parchment and signed and sealed by them in obedience and for the execution of the above mentioned [Act] do hereby set out divide allot award and confirm all and [singular] the field and commonable land by the said Act directed to be divided and inclosed containing in the whole 1,912 acres 3 roods and 12 perches including the said Turnpike Road and town green aforesaid to the several owners and proprietors thereof and persons entitled thereto in a due and fair proportion (quantity quality and convenience considered) and according to their respective rights and interests therein and subject to such orders and directions as hereinafter mentioned in manner following that is to say They the said Commissioners parties to these presents have allotted assigned and appointed and by these presents do allot assign and appoint award and confirm..”

Page 7ff – page 184ff of bundle A
(5)	The Award then records the awards made to various landowners in accordance with the statutory requirement. 

Pages26/ 27 – pages 203/204 of bundle A
	(6)	The Award then confirms the following to Sir John Warren as Lord of the Manor of Ludgershall:-

		“… and it appeared to the said Commissioners parties to these presents that there was a certain quantity of wasteland or ground in the said open or common field or commonable land by the [Act] directed to be divided and inclosed They the said Commissioners parties to these presents have therefore further set out allotted and appointed and by these presents further award and confirm unto the said Sir John Borlase Warren as Lord of the Manor of Ludgershall aforesaid as a full equivalent compensation and satisfaction for his right and interest in the said wasteland or ground all that the residue of the town greens town lanes and town streets within the said village of Ludgershall not herein awarded to any person or persons together with all the grass and herbage growing or to grow on all or any of the public roads across or over the said green which said allotment to the said Sir John Borlase Warren on the said green as Lord of the Manor The said Commissioners parties to these presents do award order and direct shall forever lie undivided in one entire plot containing 21 acres 3 roods and 9 perches and be subject to the same roads and ways through and over as the same greens were subject to before the passing of the said Act And they do also award order and direct that all such roads and ways across the same as have been hitherto used and enjoyed shall be taken and deemed as public roads and ways by all persons and to all intents and purposes whatsoever.”

	In short, this clause records that hitherto there had been waste land of the manor owned by Sir John Warren which was inclosed under the provisions of the Award in exchange for which he was given the residue of the town greens town lanes and town streets remaining.  The last five lines of this award have been referred to as the “deeming provision”.

Page 27 – page 204 of bundle A
	(7)	Here the Award deals with the inclosure mechanism in the following terms:-

	“The Commissioners… do hereby award order direct and appoint that the several plots pieces or parcels of land or ground so allotted awarded and set out respectively shall within six months next after the signing and sealing of these presents… shall be inclosed and fenced by and at the cost and charges of the several and respective owners and proprietors thereof… And… it shall be lawful from time to time and at all reasonable times in the year after the said intended division and inclosure to set down and place posts and rails and other fences on the outside of the ditches bounding their respective allotments… and that convenient gaps and openings should be left in the fences of the said inclosures for the space of twelve calendar months next ensuing the execution of the said award for the passage of cattle carts and carriages… and the said Commissioners parties to these presents have directed and ordered that such gaps and openings shall be left open for the space of three months from the execution of these presents and no longer.”

Page 30ff – page 207ff  of Bundle A
(8)	The Award then provides as follows:-

“And as to the public and private roads and ways… directed to be ascertained set out and appointed They the said Commissioners parties to these presents have ascertained set out and appointed and by these presents do award and confirm the same in manner following…”

	Some four public roads were then described which should be and remain at the breadth of sixty feet (see page 31 – page 208 of Bundle A).  There is then a reference to a public bridle road and private cart carriage and drift way having the breadth of forty feet (referred to as number 5).  On page 32 (page 209 of Bundle A) there is reference to a private cart carriage and drift way of the breadth of forty feet and then reference to a private cart carriage and drift way of sixty feet.  At the foot of page 32 (page 209 of Bundle A) there is reference to a public foot road and another public foot road at the top of page 33 (page 210 of Bundle A).  There is then reference to two public foot ways (being described as foot ways as opposed to foot roads).  Over the following pages of the Award there is then further reference to many other public foot roads.  Importantly, on page 33 (page 210 of Bundle A) two paragraphs together describe what is now the northern footpath commencing on the western boundary of Five Bells heading in the direction of Piddington and a southern fork where it goes to Chilling Place Farm.  

Following this on page 35 (page 212 of Bundle A) the Award provides as follows:-

	“All of which said public foot roads They the said Commissioners parties to these presents do award order and direct shall be and remain of the breadth of four feet as now set out and shall severally be and remain public foot roads for the use of all persons whatsoever and are meant and intended to go on using the same tracks on which the present foot ways respectively go.”
	
THE SUBMISSIONS AS TO THE ACT AND THE AWARD
Generally
16.	There are several points of construction raised in relation to these documents to which attention should be directed.
	
17.	The construction placed by the Council on the words set out in the last part of the enacting clause of the Act (see paragraph 14(4), above) is that the reference to “roads or ways” contained in this provision is to be construed by reference to what preceded it in the enactment.  It is submitted by the Council that this is a reference back to public and private roads and bridle and foot ways referred to earlier in the clause (see paragraph 14(3), above).  Thus the statute introduces and by implication defines roads and ways, but it is submitted that this definition does not include private rights of way in the form of easements between competent grantors and competent grantees.  These are intangible routes as opposed to tangibly defined routes.  The Award itself then specifies and sets out all the roads, bridle ways, drift ways, carriage ways and foot roads and foot ways, both public and private. 

18.	It is therefore submitted that roads and ways should be interpreted in the same way in both the Act and the Award.  The reference to the “same roads and ways”, and “such roads and ways” in the deeming provision of the Award (at pages 26/27 – pages 203/204 of Bundle A – as set out in paragraph 15(6), above) is to be construed in exactly the same way as in the Act so that it is to be interpreted as a reference to public and private roads and to bridle and footways as referred to in the statute.

19.	For its part, Meldale relies upon the deeming provision contained in the last few lines of this clause as to include any route comprehensively existing at the date of the Act, whether a public or private road, bridle and footway, and importantly any right of way constituting an easement between a grantor or grantee.  In the case of the last category, it is submitted by Meldale that the effect of the provisions of the Award was to “convert” any existing easement into a public highway.  It is said, therefore, that the Commissioners did not differentiate between public and private roads and ways. They adopted an “expedient method” so that they did not have to set out each and every public and private road.  If the Commissioners were only referring to public roads and ways no taking and deeming would have been necessary.  Taking and deeming only became necessary if private roads and ways were to be converted into public highways. 

20.	The crux of the case for Meldale is, therefore, based upon the assertion that the access to what is now the Meldale Land over the Green (which it says was originally a private vehicular route), whether it be Route Number 15 or Route Number 16, pre-existed the Act and by virtue of the deeming provision became a public highway and remained so until the provisions of section 67(5) of the 2006 Act came into force when it thereafter became a private road.  Meldale asserts that it does not matter that later maps and plans (in particular to OS maps for the years 1880, 1899, and 1920) failed to indicate any marked access route.  It relies upon the evidence of Dr Hodson that if the highway was not surfaced it would not have necessarily been shown on the OS maps.  These maps cannot prevail over the express words of the Award.  The important indication is the Gate indicated on the Parish Plan. 

21.		The Council for its part maintains that such an interpretation produces an absurdity.  It cannot have been the intention of the Commissioners to convert each and every easement (usually being an arrangement between adjoining landowners) into public highways.  This would include any route to any field gate.  The latter would, in effect, create a cul de sac highway.  
	
	The apparent conflict between the Act and the Award - new inclosures
22.	It is submitted that there is an apparent tension between the Act and the Award. Professor Turner acknowledges this in his report (at paragraph 11.6) when responding to Dr Hodson in her list of conclusions (at paragraph 41).  This is said to stem from the fact that the deeming provision contained in the Award, in effect, appears to convert any road or way that is in use at the date of the Award into a public road or way, whereas the Act itself makes it unlawful to use any road or way unless it has been set out by the Commissioners.  It is submitted by the Council that if there is any such tension, then as a matter of true construction the Act must prevail and the Commissioners were obliged to act in accordance with the statute.  For their part Meldale seeks to avoid that tension or conflict between the two documents on the basis that the Green was not a new inclosure but was an allotment pre-dating the Act of the residue of the uninclosed town greens and town streets to the Lord of the Manor. Meldale prays in aid the evidence of Dr Hodson.  

23.	The Council rejects this contention and its submissions can be summarised as follows:- 

(1)	The clause setting out the statutory purpose of the Award records that the Act was for “dividing inclosing assigning and allotting the open and common field …” see (paragraph 15(1), above).  It then records that the Commissioners have “set out divided and allotted … the field and commonable land …” (see paragraph 15(4), above);
(2)	Between pages 4 and 26 the Commissioners “award and confirm assign allot and appoint …” parcels of land to the various landowners listed (see paragraph 15(4) and (5));
(3)	There is then the allotment to Sir John Borlase Warren of the residue of the Green which is in lieu of waste land and ground awarded to others ((see paragraph 15(6));
(4)	The Green is numbered 184 and 184a on the Parish Plan;
(5)	The Award then provides for inclosure and fencing of the allotted plots within six months (paragraph 15(7).  The Act provides that inclosure is a physical event following allotment see the Act (paragraph 14(2);

Thus the Green was quite clearly allotted in accordance with the provisions of the Act and it is apparent from the Parish Plan that the Green given plot numbers, namely 184 and 184(a).  Thus it is submitted that to contend that the Green is an allotment and not a new inclosure is to attempt to make a distinction where there is none to be made.  
THE CONSTRUCTION ISSUES – THE FINDINGS
24.	Having regard to the various provisions set out above, I come to the following conclusions on the construction issues:-

The statutory purpose
(1)	I find that the statutory purpose of the Act was to provide the basis for the inclosure of a large common field known as Ludgershall field by appointing Commissioners and to provide them with all necessary powers for setting out, dividing and allotting the area in question. The Commissioners were required to award and confirm, assign, allot and appoint the various identified parcels of land to the various landowners listed in the Award which would thereafter be inclosed.

(2)	I also find that as part of that exercise it was necessary to deal with the crucial issue as to the provision of roads, both public and private, in, through and over the common field.  The Act required the Commissioners to ascertain, set out and appoint the public and private roads.  The Act, in effect, defines three categories of ways, namely public roads and highways, bridle ways and footways.  The width of the public roads and highways was specified as being at least 60 feet between the ditches, except the bridle ways and footways, and the public roads had to be marked and staked out.  The later references to “roads or ways” are references back to public and private roads, bridle and footways referred to in the Act which by implication defines that category.

(3)	The Award refers to the fact that the public and private roads had been ascertained set out and appointed, marked and staked out. It then refers to four public roads of 60 foot in width, two private cart carriage and drift ways having a width of 40 feet and another of 60 feet.  There are also references to two footways and numerous public foot roads all of which were to be 4 feet in width. I find that the references to “roads and ways” in the Award should be given the same meaning as in the Act.

(4)	I agree with the submissions made by Counsel for the Council that neither the Act, nor the Award, were concerned with a private right of way between a competent grantor and a competent grantee in the nature of an easement. Counsel stated that it was “a key point” that what was not included within the description of roads and ways in the Act and the Award (that is highways, roads, bridle ways and footways) is any form of private right of way in the nature of an easement.  As he put it, both the Act and the Award were concerned with tangibly defined routes – not with private arrangements between two landowners of an intangible nature. 

(5)	In my judgment, therefore, the express provisions of the Act and the Award did provide what was intended to be a systematic code of all public roads and ways roads and ways over the common field the subject matter of the proposed inclosure. It did not exclude existing easements nor thereafter exclude the creation by grant (either express or arising by prescription) of subsequent private rights of way in the nature of easements between adjoining landowners. 

(6)	I am fortified in this interpretation when regard is had to the fact that private rights of way have recently been granted on at least two occasions by the Council to adjoining owners over the Green.  I refer to the Deeds of Grant dated 22nd August 2000 and 25th November 2002 at tabs 48 and 49 of Bundle 2.  There may well be earlier examples, but no evidence of these has been adduced.  No suggestion has been made these grants were made unlawfully or there was no capable grantor. 

Private roads
(7)	The matter, however, does not end there. The question was raised by Counsel for Meldale as to the meaning of “private roads” based upon the apparent distinction drawn in the Act and the Award between public roads and private roads - also described as public ways or private ways.  It was submitted by Counsel for Meldale that a private road in effect meant a private right in the nature of an easement between a dominant and servient tenement.  In short, he said that a private road was an easement. Counsel also submitted that the “unlawfulness provision” contained in the Award (paragraph 14(4), above) had a bearing on the matter as the effect of this meant that no new easements could be created and any person who had an easement lost the same by dint of the Act coming into force unless provision was made by the Commissioners for the setting out of new private roads.  Any attempt thereafter to use any roads or ways, either public or private, over the inclosed land would be unlawful.  Further, it is submitted in this context that the “deeming provision” contained in the Award (see pages 26/27 – pages 203/204 of Bundle A) was a necessary adjunct to the Commissioners’ powers so as to enable them to avoid having to set all private roads (in Counsel’s submission including private rights of way) over the land to be inclosed and allotted and subsequently awarded.   

(8)	In my judgment, this interpretation as to the meaning of “private road” is incorrect.  The term is both neutral and descriptive.  It was undoubtedly necessary for the Commissioners to set out the routes of a number of private roads over the former common field so as to provide for the ability of one landowner, having been allotted a parcel of land, to be able to access that land from adjoining land - for otherwise such land could be landlocked.  Reliance could not be placed on the good-will of one landowner to grant an easement over his land.  The Commissioners therefore set out a number of private roads and ways over adjoining land for the use and benefit of certain individuals as the owners and occupiers of various allotments.  I particularly refer to provisions of the Award at pages 208 and 209 where the provision of public roads and ways describes the allotments over which such routes were specified and in addition also specifies private cart carriage and drift ways over certain allotments for the use and benefit of named allottees in respect of their allotments.  In other words, I agree that there were instances of the Commissioners setting out what were in effect “statutory” easements over certain parcels of land for the use and benefit of neighbouring allottees. 

(9)	I therefore reject the submission made by Counsel for Meldale that a private road or way as described in the Act and the Award by definition ipso facto constituted an easement. By setting out private roads the Commissioners were not necessarily creating easements.  I consider that there is a conflation of different concepts in that it is correct to state that it was possible under statute for the Commissioners to create what I have referred to as statutory easements.  They could also set out private roads and ways.  The creation of such private roads or ways did not of themselves mean ipso facto they had the status of private rights of way. 

The unlawfulness provision in the Act
(10)	I do not accept that the unlawfulness provision has the effect contended for by Meldale in that the exercise of private rights of way in the nature of easements is unlawful. It was submitted by the Council that the unlawfulness provision only applies to the new roads or ways over the new inclosures thereby preventing any person from using new roads or ways over the new inclosures other than those which had been ascertained by the Commissioners.  I agree with that submission. I have already found that what was not included within the description of roads or ways in the Act and the Award is any form of private right of way in the nature of easement that arises by grant or by prescription.  Thus, in my judgment, the correct analysis is that any attempt to use any roads or ways, either public or private, over the inclosed land after inclosure other than those as set out, ascertained, and appointed, would be unlawful. This stricture, however, does not apply to private rights of way acquired by grant or dint of prescription

The deeming provision in the Award
(11)	I now turn to the deeming provision in the Award, to which I have made reference at paragraph 15(6), above.  It was presumably relatively straightforward for the Commissioners in general to make the appropriate specifications for the various allotments of the common field based upon the measurements made, and also to set out the public and private roads and ways to facilitate the passage of people and livestock.  The deeming provision is directed to a more specific aspect relating to the entirety of the plot comprising the town greens, town lanes and town streets. It is specified that these should remain undivided and be subject to the same roads and ways as they had been prior to the Award, and be deemed as public roads and ways for the passage of all persons. In so far as the Green was concerned it was probably more difficult for the Commissioners to identify readily the various roads and ways across the same as having the requisite degree of use by the public so as to be constituted as public rights of way.  In such circumstances the deeming provision was presumably necessary so as to enable the public to have full rights of access across the town greens, town lanes and town streets as were subject to before the passing of the Act itself.  It should be noted, however, that this provision specifically arises only in the case to the award made to Sir John Borlase Warren as the Lord of the Manor of Ludgershall who, in recompense for the loss of the wasteland of the Manor in the common field, was rewarded the residue of the town greens, town lanes and town streets within the village of Ludgershall. 

(12)	This provision may well have “converted” private rights of way over the Green into the status of public rights of way where there was some concern as to their status, but what it did not do was to create public rights of way where none had existed hitherto. In my judgment, the deeming provision undoubtedly was included for the avoidance of doubt so as to prevent any difficulties which might subsequently have arisen as to the status of roads and ways through and over the same. 

(13)	Thus, I find that the effect of this provision was to “convert” those roads and ways over the Green where there may have been some doubt as to their status as public rights of way prior to the Award.  This, however, would not create a public right of way over a part of the Green which prior to 1778 had not been previously enjoyed as a road or way at all.

CONCLUSION ON THE CONSTRUCTION ISSUES
25.	Thus I disagree with the assertions made that on a strict of construction the Act and the Award encompass private as well as public rights of way, and that any right of way over the Green if not a “converted” public right could not continue to exist, or thereafter be created.  As a consequence the provisions of the 2006 Act have no application in this case in any event. I further find that that it remained and continues to remain possible for landowners to enter into private agreements as to the grant of easements over parcels of land for the benefit of adjoining landowners, and also for such rights to arise by prescription.  To do so does not place the parties in breach of the unlawfulness provision. In such circumstances, I do not accept that there is in fact any genuine tension between the Act and the Award.  
.	FURTHER SUBMISSIONS	
The significance of the Gate
26.	Turning to the crucial issue of the depiction of the Gate at the edge of Plot 17 on the Parish Plan I have already rejected the proposition that that as a matter of principle a right of way across the Green, if in existence at the date of the Award, was converted into a public highway by virtue of the deeming provision.  It is also clear that subsequent to the Award no public rights of way have arisen serving Plot 17 by dedication or otherwise, and, further, there is no evidence of any express grant of a right of way over the Blue land.

27.	The next point, therefore, to consider is whether there was right of way in existence in 1778 from Plot 17 across what became the Green.  The consideration of this question involves the significance of the depiction of the Gate on the Parish Plan. It is a necessary aspect of the case for Meldale to demonstrate that the Gate signifies a vehicular entrance to Plot 17.  Dr Hodson in her Report states that she did not believe that the various gates depicted on the Parish Plan were just for decorative purposes. In her opinion those gates would have been in use at that time and many of the properties fronting the Green had gates which gave access on to it (paragraph 32 of her Report).  It is on this basis that it is asserted by the Applicant that it can be inferred from that evidence that there was at the time of the Award a vehicular right of way to and from the property through the Gate in question.

28.	I come to the conclusion that there is no sufficient evidence in support of the proposition that a right of way was in existence at the date of the Award as signified by the depiction of the Gate.  In this regard I prefer the evidence of Professor Turner (to which I have referred above) where he states that at best the representation of the Gate on the boundary of Plot 17 was probably to indicate the ability to de-pasture animals. I also have regard to the fact there is no indication on any subsequent map or plan that there was any route across the Green serving Plot 17 signifying a right of way. Further, I should state that I disagree with the proposition that all properties with gates shown on the Parish Plan had per se some form of access giving rise to a right of way across the Green.  They may or they may not – this will be dependant upon all available evidence in support. 

29.	Further, based upon the fact that the Second Application was made by Meldale it must follow that the claim to a right over the Blue Land (Route Number 16) based upon the Award must fail as this is in a different position.  Dr Hodson accepted this during her cross-examination.

New Inclosure
30.	I also reject the interpretation placed by Dr Hodson of the status the Green as not being a new inclosure but an allotment.  In this regard I agree with the contentions made by the Council set out in paragraph 21, above, that such an interpretation is an incorrect analysis of the position.  The new inclosures are those parcels of land which have been allotted pursuant to the Act and then subsequently inclosed.  There is a specific allotment and award of the residue of the waste land of the manor, which formed part of the land inclosed but subject to the same roads, and ways through and over the same as existed prior to the enactment of the Act. 

31.	Thus it is clear that the land now described as the Green was a new inclosure albeit that it was an inclosure of the residue of the previously uninclosed town greens, town lanes and town streets within the village of Ludgershall.  Clearly, the purpose of the Award (following the enactment of the Act) was to set out, divide and allot the whole of the former common land and to award, confirm, assign, allot and appoint the various parcels of land to the various landowners listed therein. The allotment to Sir John Borlase Warren of the residue was in recompense for the loss of the wasteland and ground awarded to the others.  In my judgment this constituted a new inclosure together with the other land all of which was previously uninclosed.

THE RIGHT OF WAY BY PRESCRIPTION – THE DOCTRINE OF LOST MODERN GRANT
32.	There then arises for consideration the question of whether any right of way has arisen by prescription on the basis of the doctrine of lost modern grant.  Two aspects arise for consideration, namely, (1) whether any such right has been acquired by Meldale’s predecessors in title, and (2) if so, its nature and extent right i.e. could it be construed as a general right of way for all purposes, or is it restricted in some way such as to agricultural use only. From this also arises a further consideration as to whether the exercise of any such right, if so acquired, is unlawful.  In such circumstances the right cannot be exercised in any event. I should state that the claim to a prescriptive right of way can only arise in so far as Route Number 16 is concerned, being the basis of the First Application made by Meldale in February 2005.  There is no claim to a prescriptive right of way arising in the case of the Second Application.

33.	In this context, therefore, it is necessary to have regard to the evidence both oral and documentary in support and against such a claim.

The legal position
34.	The leading modern case on the concept of lost modern grant is Tehidy Minerals v. Norman [1971] 2 OB 528.  I refer to the judgment of Buckley LJ (at page 552):-

“In our judgment Angus v. Dalton (1877) 3 Q.B.D. 85; (1878) 4 Q.B.D. 162; (1881) 6 App.Cas. 740 decides that, where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.”

35.	Thus such a claim can only be defeated by evidence that the grant was impossible. This case is also authority for the proposition that the period of 20 years does not have to be next before the suit or action is commenced, as arises in the case of the Prescription Act 1832, or where the claim can be defeated by some technicality such as interruption arising by requisition of the land in question.

	Abandonment
36.	It is also necessary to have regard to the concept of abandonment in the context of this case. Meldale relies on the statement of Buckley LJ. in Gotobed v. Pridmore (1970) 115 SJ 78, cited by Cumming-Bruce LJ, in Williams v. Isherwood (1983) 45 P. & C.R. 235, at page 236:
	
“To establish abandonment of an easement the conduct of the dominant owner must, in our judgment, have been such as to make it clear at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement … Abandonment is not, we think, to be lightly inferred.  Owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they have no present use for it.”

37.	Thus non-user alone for however long a period cannot amount to abandonment. It is evidence from which abandonment may be inferred, but it must be regarded in the context of the circumstances as a whole (see Gale on Easements (17th ed) 12-45). 

The Factual Issues
38.	As occurs in many claims for a prescriptive right of way there is a conflict of evidence between the witnesses called by Meldale and those called by the Council.  I shall endeavour to summarise such evidence in a relatively short compass.

The evidence on behalf of Meldale
39.	Meldale called four witnesses of fact as to user.  They were Mr Clifford John East, Mr John Benjamin Cooper, Mr John Cartwright, and Mr Philip Austin Barnes.  

Mr East
40.	Mr East was born on 19th August 1922 and currently lives at Five Bells Farm which is he former public house to the north of Plot 17.  He was born at Glebe Farm which lies to the west of Five Bells Farm and after leaving school in 1936 he began working full time there.  He has lived in the village continuously until the present day except for a period between 1953 to 1961 when he lived at Piddington which is nearby, but he still worked on Glebe Farm full time.  His uncle bought the freehold of Five Bells House and land from the Feoffees of the Bicester Charity on 9th September 1921.  Plot 17 remained in the ownership of his uncle until he purchased it on 24th January 1977.  As I have mentioned above, in 1978 Plot 17 was subdivided when Mr East sold the area to the north comprising Five Bells House to Mr and Mrs Bergson.  He then subsequently sold what is now the Meldale Land to Mr and Mrs Barnes on 21st January 1999, and the property was transferred to them on 6th July 2000.

41.	Thus, as the evidence has revealed, Mr East has a considerable local knowledge of Ludgershall and in particular to the question of access to and from what is now the Meldale Land.  For example as he stated in his Witness Statement as a small boy in the 1920s he used to watch his uncle bring the hay carts over the Blue Land (Route Number 16) through the Gateway.  He relied upon a photograph taken in approximately 1934 which demonstrates a Gate and Gateway in approximately the current position contended for by Meldale (at YH15).

42.	Mr East also made reference to the southern end and part of the western side of what is now Five Bells House where there was situate a cowshed and other outbuildings.  He stated that his uncle used to drive his cows to be milked in the cowshed each morning and night through the Gate in the hedge at the end of the Blue Land/Route Number 16 and then would be driven back out of that Gate to one of the fields.  Evidence was also adduced to the effect that the cowshed had doors on each side enabling the passage of people from one side of the cowshed to the other in order to access Five Bells House (see paragraph 5 of his Witness Statement).  Thus it was possible to drive vehicles into the Meldale Land and then to walk through the doors on each side of the cowshed to and from Five Bells House from and to the Meldale Land.  Direct access this way by vehicles was, however, impossible.

43.	Mr East also stated that in more recent years since he purchased Five Bells Farm and House from his uncle he decided to sell the House itself along with the adjacent cowshed to Mr and Mrs Bergson. Mr Bergson gave evidence on behalf of Meldale – to which I shall refer again below.  From 1977 he continued to use the Meldale Land for sheep grazing and used to bring the sheep in to that parcel through a Gate on the western side of the land which now no longer exists, although there are still the remnants of a Gate-post remaining there.  He stated that he used the land for the storage of beef cattle fodder and one year had a bull tethered there.

44.	Subsequently in the 1980s the main uses of the Meldale Land were as a storage site for building materials and a source of hedging material.  When an old barn was dismantled he kept some of the materials and stored them on the land.  Mr East also stated that hedging material (known as “heathers”) were also collected by him some four or five times per year from the hedge adjoining the Green and in order to do this he entered into the Meldale Land via the Gate which continued to remain in the position as shown originally in the photograph YH15.

45.	Thus, in short, Mr East’s memory goes back as far as the 1920s and his recollection is that there was always a Gate in the hedge at the end of the Blue Land (Route Number 16), the Gate appearing in photograph YH15.  Vehicles were also driven across the Green into the Meldale Land, but no direct access could be gained motor vehicles to Five Bells House.  Instead, it was necessary to walk through the cowshed doors on each side in order to access the side door of the house.  Any use of motorised vehicles either with or without trailers was into the Meldale Land only, and no further.  

Mr Cooper
46.	Mr East’s evidence was supported by Mr Cooper who was born in November 1936 and started attending Ludgershall School in 1941.  He stated that he often saw Mr East’s uncle using the Gate shown on YH15 to take his cars into the Meldale Land.  He also stated that he often saw cows being driven out of that Gate across the Green in order to access another field belonging to Mr East’s uncle.  Mr Cooper also stated that he saw Mr East driving in and out of the land through the Gate at the end of Route Number 16.

Mr Cartwright
47.	Mr Cartwright has a clear recollection on at least two occasions noticing the Gate at the end of Route Number 16, and also seeing Mr East’s van on the Green in front of the Gateway.  He also had a clear recollection of seeing the Gate open with Mr East’s van parked on the Meldale Land.

Mr Barnes
48.	Mr Barnes then gave evidence.  He together with his wife purchased the Meldale Land in July 2000.  On 28th April 2003 he transferred this parcel to Meldale.  In his Witness Statement he stated that he and his wife used the Blue Land as an access way to and from the Meldale Land through a five bar steel Gate which appears in photograph number YH6.  He stated that after he purchased the parcel he replaced the Gate and then regularly used the Blue Land as an access route.  Mr Barnes stated that he used this route for entry on to the Meldale Land for the purposes of maintenance including mowing grass, cutting the hedges, repairing the fences and for the purpose of development in the future including planting trees, shrubs and plants.  He also stated that he installed a padlock on the gate and as far as he was aware this was the first time for many years that the gate had been locked.  He allowed Mr Bergson of Five Bells House to gain access over the Meldale Land in order to maintain and refurbish the barn on the adjoining property to the north.  This is disputed by Mr Bergson.

Aerial photographs
49.	I should also state that reliance was placed upon a number of aerial photographs taken in 1949 (YH38), 1985 (YH39), and 1999 (YH40).  These photographs do appear to indicate to a greater or lesser distinction some form of strip.  I find that this is indicative of some form  a track over the Blue Land to the Gate at the end of Route Number 16. 

Other evidence
50.	In 1978 Mr East made an application for planning permission to build a house on the Meldale Land for which the access would be necessary.  The Gate at the end of the Blue Land was to be the access point.  The application was refused.  It is submitted by Meldale that this demonstrates that it was highly unlikely that Mr East intended that the right of way should be extinguished.  Further one of the photographs adduced in evidence in the case of a pancake race in 1984 (Bundle A p 255), although of not very good quality, seems to demonstrate that the boundary of the Meldale Property depicted in the background as fronting The Green was far from overgrown.  

The evidence adduced by the Council
51.	I have already indicated that there is a direct conflict of interest with regard to the user of the Blue Land to access the Meldale Land.  The Council called 10 witnesses.

Mr Williams
52.	Mr Christopher John Williams was the first witness to be called on behalf of the Council.  He was born in March 1944 and has lived in the parish since 1965 and in his present house since 1975.  In his Witness Statement he stated that he could not recall there ever having been a gate along the boundary of the Meldale Land and the Green, but the hedge was very old and untidy and had broken down in parts.  He stated that as there was a means of access from the west there was no need to bring cattle into the Meldale Land over the Green.  He also stated that he was more recently aware of a new gate having been placed in the hedge more recently.  He stated that had there been activity he would have noticed it and he also disputed that there was any visible sign of any track across the Green.

Mrs Allison
53.	Mrs Marilyn Frances Allison, the wife of Professor Allison, then gave evidence.  She moved to Ludgershall in 1987 and stated that that part of the Green was a very good place to exercise dogs, but stated that she never knew there was a gate in the position contended for by Meldale.  She said the new gate suddenly appeared in about 1999/2000 and that she had never seen a gate in the hedge before.

Mr Prior
54.	Mr Arthur Reginald Prior then gave evidence.  He has lived in Ludgershall since 1983.  He said he passed the Meldale Land every day and stated that he had never seen any gate in the hedge nor had he ever seen anyone in the field or cattle or sheep there.  He also stated that as far as he was concerned there was no gap in the hedge.

Mrs Adams
55.	Mrs Adams has lived in Ludgershall since 1962 in three different houses.  She stated that she never knew there was a gate in the hedge which she had never seen nor had she ever noticed any gap.  She stated that when Mr Barnes cleared the area and put a Gate in this caused some surprise to the villagers.  Mrs Adams also did not accept that there was any track nor did she ever see cattle or sheep in the Meldale Land or Mr East cutting heathers.  In effect, her evidence is that there was no entrance to what she described as a bit of wasteland and the hedge was dense.

Mr Adams
56.	Her husband, Mr Adams, gave evidence and he confirmed that he had never seen a gate and where the gate now is was always completely overgrown and impossible to get through.  He also stated that he never saw anyone on the Meldale Land nor anyone going in or out.  As far as he was aware the area was derelict and had gone to weeds. 

Mr Bergson
57.	Mr Philip Richard Bergson then gave evidence.  He was formerly the owner of the Five Bells House purchased by him and his wife in 1978.  He stated that no-one had ever suggested any right of way into the Meldale Land, nor across that parcel to the Five Bells.  He also disputed the point made by Mr East that in order to do work on the southern flank wall of the cowshed he asked permission of Mr East to cross the Meldale Land – indeed, he said that he did not go through any gate at the end of the Blue Route in order to access his cowshed.  He also stated that he never saw any animals on Plot 17, and never saw Mr East there.  Nor had he ever seen Mr East’s car in the field, although he conceded that it might have happened.  Importantly, the kitchen window and a window of one of bedrooms of the Five Bells looked out directly onto Meldale Land and during the whole of the time that he lived there he did not see any activity whatsoever taking place there nor anyone entering or leaving it.  The land was, in short, in a state of neglect and dereliction.

Mrs Prior
58.	Mrs Marion Carol Prior has lived in Ludgershall since 1983.  She has often driven by and walked by the Meldale Land and wondered why no one did anything about it.  It was very overgrown with brambles.  She said that she never saw any gate until the new one was put in by Mr Barnes, never remembered any previous gate or any track – nor did she remember any cattle or sheep on the land.  It was a shock when the new gate appeared.  An issue did arise in relation to the fact that whilst she was the Parish Clerk she wrote a letter to Mr Barnes (Bundle B, page 273) apologising for the deposit of topsoil in front of the new gateway access constructed by him.  This in effect blocked the access.  Her answer to the reason why she made such an apology was that she did not fully realise all the legalities of the position and thought that it was a nice thing to do at that stage.  In effect, she said that nothing turned on the fact that such an apology was made and she was responding to a letter from Mr Barnes (at page 271 of Bundle B).

Dr Parker
59.	Dr Nigel Richard Parker then gave evidence.  He stated that he has been familiar with the Meldale Land for most of his adult life from the 1980s onwards, but he cannot recall a gate in the hedge, although he did recall a hedge with gaps.  He also could not recall Mr East grazing sheep on the land.  He also stated that he had never seen any evidence of access on the ground.  

Mrs Williams
60.	In her evidence Mrs Janet Rosemary Williams supported the other witnesses in that she stated that she was never aware that there was any gate or any form of access into the Meldale Land across the Green and was surprised when the new gate was installed by Mr Barnes.  She did, however, recall a hedge with gaps.  She stated that she was always a very regular user of the road taking children to and from school as much as three or four times a day and she thought that she would have noticed if any gate in the hedge had been used.  Furthermore, there were never any marks on the ground to suggest that vehicles went in and out of the Meldale Land.

Professor Allison
61.	The final witness for the Council was Professor Allison who lived in Ludgershall from July 1987 until about 2004.  He and his wife were friends of Mr and Mrs Bergson and they used to visit them frequently in the summer and sat in their garden.  He stated that the Meldale Land was neglected and if anyone did have access to it it would have been from the west side rather than from the Green.  He said that it was an exceedingly ill kempt piece of land and that Mr and Mrs Bergson were concerned with seeds coming into their garden from it.  He stated that he had never seen animals grazing on it, nor was he aware of any gate.

Findings of Fact 
62.	As a general point recollections of witnesses of fact can be faulty especially when they are being asked on a subsequent occasion to recollect matters which they had not necessarily addressed directly at the time. I bear this in mind when reaching my conclusions on the evidence encapsulated above. 
63.	I prefer the evidence adduced by Meldale, both oral and documentary, in support of the claim to a prescriptive right of way across the Green over the Blue Land along Route Number 16 to the entrance to the Meldale Land.  I come to the conclusion that there has been a right of way acquired  by prescription across the Green to and from the Meldale Land since at least the first decade of the twentieth century.  I appreciate that the evidence adduced by the Council, in the main, does not support such a finding of fact, but having regard to the evidence, particularly of Mr East, I consider that historically the evidence demonstrates that there has been access to and from the Meldale Land since then.  Where the evidence does conflict I prefer the evidence of Meldale. I also appreciate that there does appear to be a direct conflict between Mr Barnes and Mr Bergson in connection with allowing Mr Bergson access over the Meldale Land to maintain and refurbish the barn, but clearly the barn was re-furbished  by him and the recollection of Mr Bergson may be faulty on this point.  In any event having regard to the rest of the evidence not a great deal turns on this.

64.	In cases based upon the doctrine of lost modern grant it matters not when the period of prescription is to be calculated having regard to the case of Tehidy v. Norman set out above.  Further, although it may well be that this access in more recent decades has fallen into disuse I consider that such disuse is not sufficient to establish abandonment by those persons having originally acquired the benefit (see the dicta in Gotobed v. Pridmore, cited above).  Thus it is clear, in my judgment, that a prescriptive right of way was acquired and still remains extant over the Blue Land. 

65.	I do not accept, however, that this prescriptive right of way over the Green to and from the Meldale Land was acquired for anything more than agricultural purposes and that remains the position today.  All the evidence produced by Meldale points to agricultural user only, such as access by animals and occasional vehicles, but limited to agricultural user. I accordingly find that it was not used as for residential purposes to gain access to Five Bells House. Mr Darby, Counsel for Meldale, during the course of his submissions, in effect, conceded that he had some difficulty in asserting a general right of way for all purposes over the Green to and from the Meldale Land. 

66.	I should also add that I am not satisfied that there is any evidence in support of the abandonment of this right of way acquired by prescription. 
UNLAWFULNESS UNDER OTHER STATUTORY PROVISIONS
67.	On the basis of my findings set out above to the effect that: -

(1)	The true construction of the Act and the Award does not prevent the grant of a private right of way in the nature of an easement, nor prevent a private right of way being acquired by prescription on the basis of the doctrine of lost modern grant; 

(2)	A private right of way has indeed been acquired by prescription on the basis of a period of twenty years use since at least the first decade of the twentieth century under the doctrine of lost modern grant;

(3)	The so-called “unlawfulness” provision contained in the Act is not applicable as neither the Act nor the Award prevents the acquisition of a private right of way;

then consideration must be directed to the further submissions made by Counsel for the Council that the exercise of the right of way over the Blue Land along Route Number 16 is unlawful as being contrary to other legislation.

68.	Two statutes were prayed in aid in support of this contention.  The first of these is the Inclosure Act 1857 section 12 of which provides for proceedings for prevention of nuisances in town and village greens and allotments for exercise and recreation.  The section is in the following terms:-

“And whereas it is expedient to provide summary means of preventing nuisances in town greens and village greens, and on land allotted and awarded upon any inclosure under the said Acts as a place for exercise and recreation: If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every offence, upon a summary conviction thereof… forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding [level 1 on the standard scale]…”

69.	As to the fundamental question as to whether or not the Green was a town or village green, I appreciate that the Award makes reference to town greens (see paragraph 15(6) above).  It is also the case that the Green was registered as a village green on 27th October 1977 under the provisions of the Commons Registration Act 1965.  The point, however, which arises for consideration is the status of the Green for the 200 year period between 1778 and 1977.  No evidence has been adduced as to the status of the Green during that period, although during the course of the case it has been referred to as a village green.  

70.	In my judgment, I consider that it is unlikely that the Green could have been accorded he status of a town or village green after 1778 as it had been allotted and awarded to Sir John Warren in recompense for his loss of the commonable land.  The purpose of the Act and other inclosure acts was to cause rights of common to cease over common land and to allot and award such land to specified landowners.  As I have already stated above, I consider that the Green itself was a new inclosure allotted and awarded to Sir John Warren albeit with certain deemed rights of way over it.  Greens were historically protected from inclosure but this depended upon proof that the activities of the inhabitants of a locality were such as would be recognised by the courts as being of customary origin.  The meaning at common law thus is probably any land subject to customary rights of exercise and recreation. No historical evidence has been adduced in this case as to what, if any, activities have occurred on the town greens of Ludgershall.  Having said this, however, it is clear that by the middle of the 20th Century customary rights to indulge in lawful sports and pastimes or must have been established sufficient to convince the Registration Authority or a Commons Commissioner that it should be registered as a village green.  

71.	The purpose of section 12 is to provide a summary means of preventing nuisances in town greens and village greens and on land allotted and awarded upon any inclosure “under the said Acts” as a place for exercise and recreation.  The provision provides for prevention of such nuisances in the case where any person wilfully causes any injury or damage to any fence, or wilfully and without lawful authority lead or drive any cattle or animal thereon.  Thus there is some doubt that this provision applies in any event as the Green historically may not have been a town and village green at common law and there is no evidence to demonstrate that it was at a stage earlier than beginning of the 20th Century.  Even if I am wrong in this interpretation then as I have found that on a true construction of the Act and the Award that the acquisition of a private right of way by prescription was outside the parameters of those provisions, then any action of leading or driving any cattle or animal on the Green was not without lawful authority.

72.	The Council also prayed in aid the provisions of section 29 of the Commons Act 1876.  This provides as follows: -

“An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance…”

73.	Again, similar considerations apply to this provision as those set out above in relation to section 15 of the 1857 Act in that there is no evidence that the Green was in fact a town or village green at common law.  Further, although there was no equivalent provision as that set out in section 15 of the 1857 Act as to “without lawful authority”, it cannot be correct that the use of a right of way across the Green by Meldale is concerned with “any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground…”

74.	This being so, I find that neither provision referred to above has been breached by use of the right of way over the Blue Land to and from the Meldale Land.
THE LIST OF ISSUES
	Turning to the questions posed in the List, the answers are as follows:-
	
The Award
(1)	No;
(2)	No sufficient evidence in support to demonstrate this;
(3)	Not applicable;
(4)	Not applicable;
(5)	Not applicable;
(6)	Not applicable;
(7)	Not applicable;

Lost Modern Grant
(8)	Yes;
(9)	Agricultural purposes only;
(10)	No;
(11)	Yes. It is restricted to agricultural purposes only and is not a general right of way for all purposes.

THE DECISION
75.	Having regard to my findings set out above, I am satisfied that a right of way by prescription has been acquired over the Blue land along Route Number 16 to and from the Gate. This right of way, however, is restricted to agricultural purposes only. I shall therefore make the make the appropriate order directing the Chief Land Registrar to give effect to First Application but in modified form limiting the use to agricultural purposes only.  As to the Second Application I shall make a direction ordering the Chief Land Registrar to cancel the original application.

76.	I shall deal with the question of costs in due course, but they should normally follow the event.
 
Dated this 27th day of September 2007

By Order of The Adjudicator to HM Land Registry