REF/2010/0571

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

IN the matter of a reference from hm land registry

BETWEEN

Anthony Robert Cooper

APPLICANT

and

Alan Charles Prince 
Terence John Madden 
Paul Nicholas Bakewell

RESPONDENTS

Property Address: Land on the South side of Football Green Road, Minstead
Title Number: HP486706

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

Sitting at: Southampton Employment Tribunal
On: Thursday 9th June 2011

Applicant Representation:	In person
Respondent Representation:	Vivian Chapman QC, of Counsel, instructed by Messrs Eric Robinson, Solicitors

DECISION

KEYWORDS: Profit à prendre; right to exercise common of pasture; doctrine of Lost Modern Grant; Prescription Act 1832; Land Registration Act 2002, ss. 33, 34, 40, 65, sch 4, para. 5(b) or (c); Commons Registration Act 1965, ss 1, 13(b); Commons Act 2006; New Forest Claims Act 1854; New Forest Act 1877; Commons Registration (New Land) Regulations 1969, reg. 3; Commons Act 2006 Commencement No. 2, Transitional Provisions and Savings) (England) Order 2007; Commons Registration (Time Limits) Order 1966, Arts. 2. 3); of the 2002 Act

Cases referred to: Shuttleworth v Le Fleming (1865) 19 CBNS 687; Welcome v Upton (1840) 6 M & W; Lovett v Fairclough (1990) 61 P & CR 385; Betterment Properties (Weymouth) Ltd v Dorset County Council [2010] EWHC 3045 (Ch); Newnham v. Willison (1987) 56 P & CR 8; Smith v. Brudenell-Bruce [2002] 2 P & CR 4; Newman v Bennett [1981] 1QB 726; R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70; A-G v Reynolds [1911] 2 KB 880

	THE APPLICATION
1.	By an application dated 27th January 2010 in form AP1 (“the Application”) Mr Anthony Robert Cooper (“the Applicant”) applied to the Chief Land Registrar to note a right of pasture as a profit à prendre in the Charges Register of title number HP486706.  The right is claimed for the benefit of the Applicant as a commoner of the New Forest and of the Wastes of the Manor of Minstead. In Box 7 of the Application the address for the Applicant is described as being Acres Down Farm, Minstead, Lyndhurst, Hants (“Acres Down Farm”), and the letter accompanying the Application bears this address, and the Applicant’s name, at its head. 

2.	Mr Alan Charles Prince, Mr Terence John Madden, and Mr Paul Nicholas Bakewell, (“the Respondents”) are the registered proprietors of title number HP486706 which is described as being the “land on the south side of Football Green Road, Minstead”. On its original sale in 1972 this parcel formed part of a larger area of glebe land sold by the Church, part of which was later developed for housing. However, the subject matter of this case relates to the sale of what was then referred to as “Lot 2” and this parcel of land has been variously referred during the course of this hearing as “the Glebe”, or “the Glebe Land”.  I shall refer to this land hereinafter as “the Glebe”.  The Respondents were registered as the proprietors of the Glebe on 10th February 2009 by a transfer dated 8th January 2009 from Charles Bishop Ltd (“Charles Bishop”) of which Mr Peter Charles Bishop was the managing director. The Glebe was originally conveyed by Earlcote Properties Ltd (“Earlcote”) to a company called Gemford Ltd (“Gemford”) by a conveyance dated 31st May 1974 and apparently was subsequently registered at HM Land Registry in 1995.  Although the exact relationship is somewhat unclear  (and it is not a matter of any real importance in this case) I was informed  that Charles Bishop formerly traded under the name of Gemford, and it may well be that there was a change of name of the company from Gemford to Charles Bishop at some stage. Mr Peter Charles Bishop was the father of Mr John Richard Bishop who gave evidence in the case on behalf of the Respondents.  

3.	The Respondents object to the Application on the grounds that the right claimed by the Applicant is a customary right; that the Applicant has not shown evidence of the use claimed or for a sufficient period of time; and that the Applicant has not shown that the use has been without force, without secrecy and without permission (nec vi, nec clam and nec precario). These contentions have been developed further during the course of the proceedings including a jurisdictional issue as to whether the Glebe actually forms part of the New Forest which as Crown Wastes is governed by its own statutory provisions. 

4.	I should state that on 28th October 2008 a similar application to that made by the Applicant was made by Mrs Anne Joan Cooper (the former wife of the Applicant) who also describes herself as being of Acres Down Farm.  This application was referred to the Adjudicator under REF/2009/1027, but was later withdrawn on 21st January 2010. It was made at the time the Glebe was being sold by Charles Bishop to the Respondents. No reason has been given for the withdrawal of Mrs. Cooper’s Application. 

5.	However, of some significance in the case is that the fact the Applicant and Mrs Cooper were married and lived together at a house known as “the Paddock” from about 1972, being the date when the house was apparently constructed. At some stage this property apparently became known as Acres Down Farm, but this is not to be confused with Acres Down Farmhouse situated nearby, now known as “the Cottage”, which is owned by Mrs Cooper’s sister, Ms Sally Ann Burley.  That property is registered. In 1984 the Applicant and Mrs Cooper were divorced and as part of the arrangements surrounding the divorce the Applicant transferred the whole of his interest in Acres Down Farm to Mrs Cooper. He apparently still continues to live there in part of Acres Down Farm with the consent of Mrs Cooper and says that he “occupies” the land.  It is said that he and his wife were the owners in fee simple of this property. No documentary evidence has been provided in support of these various assertions.

The nature of the Application
6.	The nature of the Applicant’s case has been described in various ways, and is somewhat convoluted as there have been a number of amendments made to his statement of case.  In order to address the various issues raised it is therefore necessary to have regard to the contextual background of the Application, and what was sought to be originally claimed  together with subsequent amendments.  

The Application
(1)	The Application was accompanied by a letter dated 27th January 2010.  In Box 4 of the Application the Applicant stated that he wished “to note restriction common right of pasture”.  In the accompanying letter he states that his Application is “for a note of my interest as a Commoner of the New Forest and of the Wastes of the Manor of Minstead for the right to exercise the common of pasture by way of profit à prendre over the Title contained herein in the land known as [the Glebe]”.

Statement of case
(2)	This was originally dated 20th June 2010, and then amended subsequently in red on 23rd August 2010. It was then re-amended in green on 25th September 2010 following an order granting permission for further amendments made by the Adjudicator on 22nd September 2010.  In the amended version of this document under the heading “reasons for supporting the original application” it was stated in paragraph 1 that the Applicant and his predecessors in title by virtue of his and their occupation of land at Acres Down Farm since 1972 and a date unknown before 1930 have exercised common rights of pasture over the Manorial Wastes of the Manor of Minstead.  It is to be noted that the Applicant altered his claim from the original version in that he was claiming only on his own behalf and not also on behalf of “...all Minstead Manor and New Forest Commoners”. It is further stated in the amendments made to paragraph 4 that in exercise of his rights and those of his predecessors in title they have turned out livestock without restraint from Acres Down Farm, such livestock having continuously wandered and strayed from time to time since time immemorial until the present from the Manorial Wastes on to the Glebe without hindrance by fencing or gates.

(3)	The Applicant then in paragraph 5 asserted a claim to have acquired a right of Common of Pasture over the Glebe by long use in accordance with the provisions of section 1 of the Prescription Act (“the 1832 Act”), and at common law.  Such use has been continuous uninterrupted for a period in excess of 30 and 60 years without permission and has not been obtained by force and has been exercised as of right by the Applicant and his predecessors in title, there being no notice of prohibition or trespass visible at any time on the property.

(4)	The Applicant in paragraph 6 further, or alternatively, claimed that the Glebe has been used for the above purposes by the commoners of Minstead Manor and of the Crown Lands of the New Forest Commoners for a period in excess 60 years to graze their commonable animals which said use has been uninterrupted, continuous and without hindrance and permission and not obtained by force.  It was asserted that at common law and/or by virtue of the provisions of the 1832 Act the Glebe has acquired the status of a “common”.  The Applicant also claimed the right of common pur cause de vicinage over the Glebe.

(5)	In such circumstances he claims to be entitled to have a note of his common right of pasture by profit à prendre entered in the Charges Register of the Respondents’ title.  

(6)	Subsequently in September 2010 the Applicant produced the re-amendments in green to his Statement of Case whereby he deleted the whole of paragraph 1 as originally set out, to which I have referred above, and inserted a new clause 1 to the following terms:

“The Applicant at all material times by virtue of his ownership and occupation of the land at Acres Down Farm… and others the owners for the time being of the said land and their predecessors in title (hereinafter referred to as “the dominant owners”) have exercised common rights of pasture over the Wastes of the Manor of Minstead.”

Pursuant to these re-amendments paragraphs 4 and 5 were deleted, and new paragraphs inserted in their place. These are to the effect that the Applicant and the “dominant owners” in the exercise of their common right of pasture have turned out their commonable animals without restraint. As a result it is claimed    that the Applicant has acquired the common right of pasture for himself and the “dominant owners” for the time being of Acres Down Farm by virtue of long use in accordance with the provisions of section 1 of the 1832 Act, and or by virtue of a deed of grant made to him and the “dominant owners” by the predecessors in title of the Respondents, but which has since been lost or destroyed by accident.

7.	I should state that by the outset of the hearing on 9th June 2011 the Applicant had abandoned his claim to a right arising from prescription at common law and a right of common in gross, and also a right of common based upon some form of equitable estoppel. As a consequence the nature of the Application being brought is restricted to claims under the 1832 Act, and under the doctrine of lost modern grant and this is how it is put by him in paragraph 11 of his skeleton argument dated 6th February 2011. I shall turn to these developments in more detail below

8.	In this context the Application can thus be interpreted in three ways:-

(1)	An Application for the registration of a restriction;
(2)	An Application for the registration of a notice;
(3)	An Application to alter the register.

9.	I consider that it is necessary at this stage to deal with the true interpretation of the Application prior to the consideration of the evidence and the legal issues. This will help to clarify the precise rights being claimed by the Applicant upon which appropriate findings of law and fact can be made. 
A restriction
10.	The entry sought by the Applicant is not capable of constituting a restriction.  For the purposes of section 40 of the Land Registration Act 2002 (“the 2002 Act”) a restriction is 
“an entry in the register regulating the circumstances in which a disposition of a registered estate or charge may be the subject of an entry in the register.”

	A classic example of something which is capable of being protected by the entry of a restriction is an interest under a trust, a charging order over a beneficial interest in land, the interest of a trustee in bankruptcy in property held on trust, or a restraint or a freezing order.  Thus, on any basis the Application cannot support an entry which is capable of being protected by a restriction on the register.

	A notice
11.	A notice is 

“an entry in the register in respect of the burden of an interest affecting a registered estate or charge.”

	However, by virtue of section 33 of the 2002 Act no notice may be entered in the register in respect of “excluded interest”.  Such an excluded interest is that contained in section 33(d) of the 2002 Act. This provides that an interest which is capable of being registered under the Commons Registration Act 1965 (“the CRA 1965”)  is not capable of protection. The reason for this that it is an interest capable of being protected by being registered under that Act (apart from an entry which could be sought in respect of vicinage rights – which are not interests in land in any event).

12.	Thus, rights of common (other than vicinage rights – these are not rights in themselves - see below) could have been registered in the Commons Register by virtue of section 13(b) of the CRA 1965. This has not yet been repealed by the Commons Act 2006 (“the 2006 Act”) in the county of Hampshire (see Commons Act 2006 Commencement No. 2, Transitional Provisions and Savings) (England) Order 2007).  In this regard a jurisdictional issue arises for consideration as it is asserted by the Respondents that the Glebe and the Manor of Minstead are not within the perambulation of the New Forest and therefore do not form part of the New Forest lands, thereby rendering the Glebe land to which the CRA 1965 would have applied. However, as the Glebe was not registered as common land for the purposes of the CRA 1965 by the expiry date of 31st July 1970 (see section 1(2)(a)), any common rights which may have existed over the Glebe in favour of a dominant tenement withered on the vine at that stage. I shall refer again to this matter, and the case of Newman v Bennett [1981] 1QB 726, below. I should state that the Applicant disputes this interpretation on the basis that the CRA 1965 was, and is, of no application as the Glebe forms part of the New Forest and is governed by the specific current legislative framework appertaining to the Forest.

13.	Further, it is contended by the Respondents that the Applicant is not entitled to apply for a notice to protect a right appurtenant to Acres Down Farm as he is not entitled to the benefit of that right not being the owner of any part of that farm (see section 34(1) of the 2002 Act).  In this regard I should state that the Applicant asserts that he has some form of right of “occupation” of Acres Down Farm with the authority of his ex-wife. He contends that there is specific legislation in the New Forest governing this position, and that there is documentary evidence available which illustrates such entitlement.  The Applicant at one stage was also alleging that he had some form of equitable right of common (now withdrawn).

The alteration of the register
14.	It would appear that the Application is in fact to alter the register pursuant to the provisions of section 65 of, and schedule 4, paragraph 5(b) or (c) of the 2002 Act.  However, it would seem that the asserted right of common (unless it is a vicinage right) cannot be registered under the 2002 Act as it may be a right of common capable of being registered under the CRA 1965. As I have stated above, this statute remains in force in non-pilot (or “pioneer”) areas (see the 2006 Act section 1(1)). However, this interpretation is dependant upon whether the Glebe falls within the perambulation of the New Forest, or is outwith it, to which I will turn again below.

15.	Further, it is asserted that the Applicant has no locus standi to make an alteration to amend the register if the right claimed is appurtenant to Acres Down Farm since he has no legal or beneficial interest in that farm, despite his assertions that he has some form of right of occupation which he asserts grounds a commons right.

THE PRECISE RIGHTS CLAIMED BY THE APPLICANT
16.	Having regard to his Statement of Case and the various amendments made thereto, the Applicant originally appeared to be claiming one or more of the following alternative rights arising at common law, or under the provisions of the 1832 Act, or under the doctrine of Lost Modern Grant.

(1)	A right of common of pasture over the Glebe appurtenant to some or all of the land at Acres Down Farm;
(2)	A right of common of pasture over the Glebe in gross vested in himself;
(3)	A right of common of pasture pur cause de vicinage ancillary to one or other of the first two rights;

The Applicant has also asserted that such rights of common arise in equity.

17.	It is trite law that a right of common in gross cannot be claimed under the provisions of the 1832 Act (see Shuttleworth v Le Fleming (1865) 19 CBNS 687 at 709, and Welcome v Upton (1840) 6 M & W 536). Further a right in gross can only be based upon user by the Applicant and not by other people (see Lovett v Fairclough (1990) 61 P & CR 385, at page 399).  I should state that Mrs Cooper in her evidence confirmed that the Applicant did not hold a right in gross, and such rights of common as exist are attached to Acres Down Farm and other land.   

18.	However, as I understand the position having regard to the various re-amendments to the original statement of case and the submissions made by Mr Cooper, these various claims, including a claim to an equitable right of common and a claim in prescription arising at common law, have now been restricted to the claims arising under the 1832 Act and/or the doctrine of Lost Modern Grant. 

THE LEGAL POSITION
19.	Turning to the contention that the Applicant has acquired by prescription a profit à prendre pursuant to the provisions of the 1832 Act and/or under the doctrine of Lost Modern Grant, it is essential for the Applicant to demonstrate the following principles:-

(1)	Thirty years user without interruption pursuant to section 1 of the 1832 Act;
(2)	Sixty years user without interruption pursuant to section 1 of the 1832 Act;
(3)	Twenty years user under the doctrine of lost modern grant.

20.	Under the 1832 Act the Applicant can only rely upon the thirty years or sixty years next before suit provisions, and there is a special rule as to an interruption in that no act is deemed to be an interruption unless it has been submitted to or acquiesced in for one year after the party interrupted had notice both of the interruption and of the person making it (see section 4 of the 1832 Act).  It is asserted by the Respondents that under the doctrine of Lost Modern Grant the Applicant cannot rely upon user before 1970 as all the rights acquired before 31st July 1970 (other than vicinage rights) were extinguished from non-registration under the provisions of section 1(2) of the CRA 1965. This is based upon the assumption that the Glebe does not fall within the area of the New Forest, to which I shall refer again below.

21.	Further, and in any event, reliance upon the 1832 Act, or the doctrine of lost modern grant, means that there must be definite and continuous user throughout the periods, and that the user relied upon must be as of right; i.e. nec vi, nec clam and nec precario. User is vi if it is contentious. 

The relevant authorities
22.	Newnham v Willison  [1981] 1 QB 726 – The issue in this case was whether the plaintiff could establish a prescriptive right of way under the 1832 Act over a ‘swept curve’ on a driveway.  The swept curve had been used for more than 20 years.  The action was brought on 27th June 1984 and the Court of Appeal disregarded any ‘interruption’ in the year before suit under the 1832 Act, section 4.  The question was therefore whether user was as of right before 27th June 1983. The following events happened before that date:

(1) 	The Defendant erected a post obstructing the swept curve in May 1983 followed by a row of stones and lumps of hardcore.  These obstructions were ‘transient’ and the swept curve continued to be used until the fence was erected in August 1983.

(2)	A solicitor’s letter complaining about the obstructions was sent on behalf of the Plaintiff’s predecessors in title on 23rd June 1983.

23.	Kerr LJ reviewed all the above authorities and said that user was contentious (and not as of right) if the user knew that the landowner objected to the use and continued user despite the objections (at page 19 of the judgment).  The Court of Appeal held that user was contentious and not as of right before 27th June 1983.

24.	Smith v Brudenell-Bruce  [2002] 2 P & CR 4 – The claimant claimed a right of way under the 1832 Act and under the doctrine of lost modern grant over the defendant’s land on a track leading to the Savernake Forest.   The claimant used the track from 1975 until the date of the claim.  In 1998, the defendant wrote to the claimant declaring the claimant was persona non grata on the defendant’s land.  The judge held that user was contentious and not ‘as of right’ after the 1998 letters.   The claimant failed in this claim under the 1832 Act since there was not 20 years’ user next before action. However, he succeeded under the doctrine of lost modern grant since there was 20 years’ qualifying user before 1998.

25.	Pumfrey J analysed the authorities and produced the following test:

“It seems to me a user ceases to be user ‘as of right’ if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner’s knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action.  A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.”

	However, on the facts of the case, the judge found that user became contentious without physical obstruction or litigation.  It was enough that the defendant had written 2 letters to the claimant forbidding use of the track.  The actual decision is therefore consistent with the proposition that user was contentious because the user knew that the landowner objects to the use.

26.	In Newnham v Willison the same stringent test was not being applied as was later applied in Brudenell-Bruce.  If it had, it would presumably have required the defendant to erect a fence before user became contentious.  The test in the Court of Appeal test in Newnham v Willison was not whether the defendant did all he could to obstruct the use, but whether he did enough to let the plaintiff (and his predecessor) know that he objected to the user.

27.	R (Lewis) v Redcar & Cleveland Borough Council [2010] 2 AC 70 – The issue of contentious user did not arise in the Redcar case, but Lord Rodger nonetheless discussed it as some length (see paragraphs 86 to 90).  He said that English law interpreted vi in much the same way as Roman law under which it was enough if the person concerned had done something which he was not entitled to do after the owner had told him not to do it.  This approach is to be perceived in contrast to the test referred to in Smith v Brudenell-Bruce.

28.	User is contentious if it involves use of gaps in fences or hedges and it would be clear to the reasonable user that one of the purposes of the fences or hedges was to keep animals out, Betterment v Dorset CC [2010] EWHC 3045 Ch at [122].

29.	Finally, both sides relied upon the case of Newman v Bennett [1981] 1 QB 70.  This was a case where the appellant (who was a relation of Mrs Cooper) enjoyed a right of common of pasture over the Wastes of the manor of Minstead – the very subject matter of the present reference. As a result of this right of common of pasture over the Wastes of the manor of Minstead the appellant enjoyed a right of common de pur vicinage over the New Forest lands.  This enabled cattle owned by him to roam freely over such lands, but such” right” was limited in character, and has been described as a “permissive right”. It is a means by which a common of pasture can be obtained by the commoner of one common over the land of an adjoining common in the circumstances- 

“…where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other’s fields, without any molestation from the other.  This is indeed a permissive right, intended to excuse what is strictness is a trespass in both, and to prevent a multiplicity of suits.” (per Blackstones Commentaries, 17th ed. (1830), vol 2, at page 33) . 

In the words of Waller LJ, the appellant with a right of pasture over the wastes of the manor of Minstead had a right of common of pasture pur vicinage over the Forest lands. “Whilst it may be useful as a shield against trespass….it is still a right of common, although limited in character because it is determinable” e.g. by fencing off. It is limited to the number of beasts which could properly be put out on the manor of Minstead, and it would not be permissable to put out more by reason of vicinage (at p 734).

30.	What is of importance in this case is that the Divisional Court accepted and found that the land comprised in Wastes of the manor of Minstead is contiguous but not part of the perambulation of the New Forest, and that cattle de-pastured on the manor of Minstead can and do freely roam in the absence of any restraint onto Forest land and vice versa. However, this begs the question as to whether the Glebe formed and continues to form part of such Wastes as is contended for by the Applicant. I should also reiterate the point that whatever may be the nature of the “right” it is not registrable as a proprietary right under the provisions of the 2002 Act.

	THE FACTUAL CIRCUMSTANCES
	The Applicant’s evidence
31.	The Applicant gave evidence himself and called the following witnesses Mr Stephen Charles Cattell; Ms Philippa Jane Pomeroy Legg; Ms Margery Jean Elkins; Ms Sarah Garner; Ms Sarah Surplice; Mr Julian Norman Rudd; Mr Robert Pearce;  and his ex-wife Mrs Anne Joan Cooper.  He also relied upon the evidence of a two persons who were unable to appear during the hearing – Mr Leonard Mansbridge who has died since providing his witness statement’ and Mr Ian Trip who did not appear. 

32.	The evidence for the Applicant can be summarised as follows – It is contended that the right of pasture over the Wastes of the Manor of Minstead has been vested in Acres Down Farm from time immemorial, and in particular since 1947 when the Applicant’s wife’s grandmother purchased the Farm. The manor of Minstead falls within the perambulation of the New Forest and is governed by the New Forest Acts.  The Glebe is surrounded by the manorial Wastes and access to the Glebe can only be obtained from the Wastes. The rights of common over the Glebe have been acquired by prescription and enure for the benefit of the dominant tenement (i.e. all the land comprising Acres Down Farm and other adjoining land (including Acres Down Farmhouse) and have been registered under the New Forest Claims Act 1854. The Glebe as the servient tenement has remained open and unfenced at all material times and in any event since 1929. What fencing there may have been has not been adequate to keep animals out and is any event illegal. As a result communing livestock has strayed unrestrained from the manorial Wastes onto the Glebe to graze.  

33.	The Applicant asserts that he has exercised this right since 1972 as owner and then occupier without interruption until the present day. These activities have been acquiesced in by the owners for the being of the Glebe. Since their divorce in 1984 (when his interest in Acres Down Farm was conveyed to Mrs Cooper) the Applicant as a New Forest Verderer, and as “occupier” of Acres Down Farm, has continued to exercise these common rights over the Glebe on some form of informal arrangement. Mrs Cooper states that since their divorce she has 

“allowed and authorised him to use my freehold land as a base from which to exercise his common rights of pasture as before, and to turn out a few animals which he has bought as before for the JN   Acres Down farm herd which I farm under the style of Jack Newman and Daughter as registered with Defra.” 

However, in her evidence she said that there is no formal agreement regulating this arrangement.

34.	This enjoyment has been continuously and openly enjoyed as of right without permission and without interruption. Force has never been used to gain access. The recent and past owners have acquiesced in this enjoyment. 

35.	In support of these contentions the Applicant has produced a letter from the Verderers of the New Forest dated 21st January 2011 (Bundle pages 178/179). This states that

“…by virtue of your occupation of land at Acres Down Farm, Minstead, shown outlined in green on the attached plan, you are entitled to exercise the Forest Right of common of pasture therefrom, over the Crown Lands of the New Forest…” 

Unfortunately I was not shown the original of this documentation and the attached plan was not in colour, and it bore what appeared to be subsequent markings.  I could derive little assistance from it not least because there is no reference to the Wastes of the manor of Minstead . 

36.	Further in support of his case the Applicant submitted that he owned three animals and in support he produced an invoice from Southern Counties Auctioneers dated 19th October 2010 (see Bundle at page 180) which refers to the sale of a bull calf at Salisbury Market, the invoice bearing the name of the Applicant whose address is describe as being Acres Down Farm. It is said that this was one of the commoning animals owned by the Applicant (he used to have more) which wandered over the New Forest lands including the Glebe.

37.	It is to be noted that the Applicant and his witnesses relied upon factual circumstances relating to fencing, and in particular to attempts to fence the Glebe, in support of his assertions that there was an unrestricted rights for the commoners of Minstead to turn out their animals to graze on the Glebe. This was to illustrate that such fencing that was erected was in fact illegal, and that those occasions when the fencing was broken or gates were removed demonstrate the illegality of the fencing being there in the first place.  Instances of these occasions of the cutting or breaking down of fences is to be perceived as what could be described as a form of self-help in rejection of the landlord’s “approvement” (the concept has now been abolished by the 2006 Act). These  are as follows:-

(1)	In the evidence of Mr Cattell (Bundle, page 38, paragraph 3) where he states that several attempts to fence the Glebe had been made by contractors acting on behalf of persons claiming to the owners of the land, but the fencing had “…. never been completed in its entirety so as to exclude commoning animals as is the customary requirement of land owners within the perambulation of the New Forest.”

(2)	The evidence of the Applicant (page 40, paragraph 2) where he states in his witness statement that he had never seen a day when the land has not had animals belonging to commoners of the Manor grazing on it, and that as often happens in the New Forest fencing which prevents such grazing is often “broken down and I suspect this may have happened here.”

(3)	The evidence of the Applicant’s ex-wife, Mrs Anne Joan Cooper who states in paragraph 11 of her witness statement that notwithstanding the Respondents’ complaints of gate removal and fence breaking it has been shown without contradiction that commoning has been established for more than sixty years over the Glebe.  In such circumstances the remedy of the commoners against “unlawful enclosure” is self-help and perceived to be a lawful activity. She stated that “I have never indulged in this activity myself but it is often used by frustrated commoners against unlawful enclosures, though frowned upon by both the Verderers and the Commoners Defence Association.”  

(4)	The evidence of Mrs Surplice who states in paragraph 7 of her witness statement that if any fencing or gating is installed with a view to the enclosure of the Glebe “…it is very quickly cut down or removed.”  However, it is also asserted that when such fencing is installed it is “far from complete”.  A comprehensive fencing scheme has never been undertaken.

The Respondents’ evidence
38.	In support of their case the Respondents relied upon the following witnesses:- Mr Richard John Taylor; Mr Desmond Thomas (a former Detective Superintendent of Police and Deputy head of Hampshire Constabulary); Mr John Richard Bishop; and the third Respondent.  Insofar as their evidence is concerned, it is contended that the pre-1974 factual matrix suggests that the Glebe was not perceived as being subject to rights of common.  In this regard I refer to the following documents contained in the Bundle:-
(1)	The statement of the third Respondent dated 19th March 2010, to which is annexed the statutory declaration of Mr John Edgehill Collins, declared on 30th June 1972, in which it is stated that from the knowledge of Mr Collins of the neighbourhood and from examination of the papers and documents belonging to him he is “…satisfied that the said property is part of the Glebe of the said parish [of Minstead] and that the successive incumbents of the parish have been in undisputed possession and enjoyment of the rents and profits for upwards of thirty years last past.”

(2)	The third Respondent also exhibits a copy of Sales Particulars dated 18th May 1972 together with a plan which, it is contended, demonstrate that land, including the Glebe, was sold with vacant possession.  It is to be noted that included in the Sales Particulars (at page 99 of the Bundle) that there is reference under the head “Forest Rights” there appears the following statement:-
 
“It is believed that the commons of pasture and mast are attached to the property”

	However, it is to be noted further in these particulars that the Glebe (Lot 2) is not perceived as forming part of the New Forest. This is the position adopted by the Respondents although disputed by the Applicant.

(3)	My attention was also directed to paragraph 6 of the Special Conditions of Sale which refers to the fact that the vendor was selling in exercise of the powers of the Ecclesiastical Leasing Acts as Incumbent of the Benefice of Minstead and subject to the approval of the Church Commissioners.  In paragraph 7 of these Conditions there is reference made to the land as former ancient Glebe of the Benefice and no documents of title are known to exist.  Thus, it is contended by the Respondents that the Glebe is itself a dominant tenement holding rights of common of pasture and mast attached to the property over the New Forest.  This, it is asserted, is wholly inconsistent with the contention on the part of the Applicant that the Glebe is itself a servient tenement with rights held over it in favour of the Applicant and other persons.  
(4)	In the Bundle at page 104 and dated 16th August 1972 where the Glebe was then sold to Earlcote, the predecessor in title to the Respondents for the sum of £8,300.  

39.	In their evidence the Respondents contended that at least since 1974 the owner of the Glebe has repeatedly attempted to keep it securely fenced and gated.  By reference to the evidence, both documentary and oral, the following points are made:-

(1)	By a conveyance dated 31st May 1974 and made between Earlcote and Gemford purchased the Glebe.  Mr John Bishop, a director of Charles Bishop gave evidence during the course of the hearing.  In his witness statement dated 18th January 2011 he stated that he visited the Glebe with his father in July/August 1974 and found it fenced and gated.  He recalled that they both climbed over the gate and walked around the land on which horses were grazing at the time.  Mr Bishop stated that subsequently he visited the Glebe on a number of occasions, mostly with his father until his death in 1989, and on each of these occasions it was fenced and horses were present there apparently with his father’s agreement and subject to a grazing agreement with the company. He stated that a Mr Holt was engaged by Charles Bishop to undertake occasional maintenance of the fences to the Glebe. 

(2)	 In 1994 there was some difficulty with a Mr Oliver Cutts, formerly of Earlcote which company prior to 1974 had owned the Glebe. Mr Cutts was by this stage personally attempting to claim ownership of it by adverse possession.  On 5th August 1994 Mr Bishop visited the Glebe and saw a sign at high level on a tree at the entrance to the Glebe which stated that it was private land and that it belonged to Mr Cutts.  Mr Bishop also saw a for sale board at the entrance to the land.  He saw no animals there. At this time he stated that the Glebe was fully fenced and that contractors (Fencing Services of Fordingbridge) had been recently engaged to carry out repairs and reinstatement of the fence apparently by Mr Cutts. Payment for this service was in fact paid for by Mr Bishop (see page 84).  The dispute with Mr Cutts was finally settled a year or so later and the Glebe was then registered in the name of Charles Bishop.

(3)	Mr Bishop stated in his evidence that over the following years the fences surrounding the Glebe were mended on a number of occasions.  The following instances are recorded:-

(a)	In 1981 Mr Bishop instructed a Mr Holt to mend the fences surrounding the Glebe (at page 76);
(b)	From 1982 to 1988 Mr Holt carried out occasional maintenances to the fences (page 76);
(c)	In 1994 on the instructions of Mr Oliver Cutts (see paragraph 39(2), above);
(d)	Between 1994 and 1995 Mr Bishop repaired the fences on several occasions (page 78);
(e)	It is also to be noted that in 1995 the Land Registry made an inspection (see pages 159/160).  During that inspection a number of photographs were taken by the Land Registry surveyor by reference to positions marked on the plan at page 161.  Three gaps in the hedges/fences surrounding the Glebe were marked on this plan by reference to three of the photographs.  These are the following - photograph no 3 – this indicates that a hole had been ripped in the fence at this point; photograph 12- this is said indicates a “small gap in hedge. Bank trampled down, access possible”; and photograph 11 – this bears the caption “gate 1 YR.  There was a gap at side of gate big enough for a horse to be led through.”
(f)	Between 1995 and 1998 Mr Bishop repaired the fences twice (page 78).
(g)	October 2008 Charles Bishop had the fences repaired and the gates re-hung but the fences were soon cut and the gates were taken off their hinges (see page 51).  Paragraph 17 of the third Respondent’s witness statement makes reference to the fact that on 22nd and 23rd October 2008 the land was completely gated and fenced and secured against access for approximately two days and for sale sign boards were placed on the site.  However, over the weekend of 25th and 26th October 2008 the fences were then cut and the gates removed and taken off their hinges.  Mr Bishop also refers to these events (see pages 79/80)

40.	The essential point is that fencing has surrounded the Glebe but that over a substantial period of time it has been repeatedly cut or vandalised by unknown persons, and gates were taken off their hinges. In short the Respondents contend that whatever the dispute concerning the efficacy of the fences to keep out commoning animals, the fences would have been adequate if they had not been repeatedly cut and gates removed.  It is asserted that it is clear over the decades that the respective landowners were trying to secure the Glebe from intrusion by animals.  The reasonable owner of the commoning beasts would realise that such beasts were entering the Glebe through gaps in fences or hedges which were actually intended to keep them out.  In such circumstances user since 1974 cannot have been as of right and it is for the Applicant to prove on a balance of probabilities that user was as of right throughout the relevant period of prescription.  In other words the essential argument of the Respondents is that the purpose is not to establish the quality of the fencing but the fact that the successive landowners were trying to secure the Glebe from wandering animals.

41.	In summary, it is the Respondents’ case that there is no satisfactory evidence adduced by the Applicant that:-

(1)	He has ever owned any beasts which have ever grazed on the Glebe, or if he did own such animals there has never been any quantification of their number;
(2)	That any animals from Acres Down Farm grazed the Glebe to a sufficient extent to give right to prescriptive rights;
(3)	To identify the boundaries of the claimed dominant tenement, there being somewhat vague suggestions that there were three separate areas which may have qualified as the dominant land.

42.	As a consequence it is contended by the Respondents that the Applicant’s claim to a right of common of pasture appurtenant to some or all of the land comprising Acres Down Farm is doomed to failure by reason of the following –

(1)	An appurtenant right of common in a non-pilot area is capable of registration under the CRA 1965;

(2)	The Applicant admits to not owning any part of Acres Down Farm, although it is contended that he has some form of right of occupation. However, the legal and/or beneficial interest that the Applicant held in Acres Down Farm was terminated in 1984 when his interest was transferred to his ex-wife on their divorce. 

(3)	The boundaries of the claimed dominant land have never been adequately identified;

(4)	There is no or no adequate evidence that animals belonging to Acres Down Farm have ever grazed the Glebe for the whole of the relevant thirty year or sixty year prescriptive period next before suit, or for the whole of any twenty year period after 1970. 

(5)	Any grazing that here may have been on the Glebe has been contentious.

THE DECISION
43.	Two issues arising for consideration.  First, the issue as to whether in any event the Applicant, as occupier of Acres Down Farm, can demonstrate that he has acquired any prescriptive right over the Glebe. Secondly, the jurisdictional issue as to whether or not the Glebe lies within the boundaries of the New Forest, and therefore subject to the New Forest statutory regime, or whether the Glebe lies outside those boundaries in which case it would in principle have been subject to the provisions of the 1965 Act. 

44.	 In this context I have construed the legal basis of the Application as being an application to alter the register pursuant to the provisions of section 65 of, and schedule 4, paragraph 5(b) or (c) of the 2002 Act.   

	Summary
45.	Having regard to the legal principles, and the evidence, both documentary and oral, to which I have made reference above, I have come to the conclusion that there is no merit either in law and/or on fact in the Applicant’s case to have a right of pasture in the nature of a profit à prendre arising by prescription, either under the doctrine of Lost Modern Grant, or under the 1832 Act, noted in the Charges Register of title number HP486706 and he is not entitled to have the register altered to this effect.  My reasons are as follows:-

The first question – rights of prescription
46.	In my judgment the Applicant has failed to demonstrate the following –

(1)	has failed to provide any evidence of ownership of any beasts at all, and importantly any such animals which have ever grazed on the Glebe.  Further, apart from vague assertions, Mr Cooper has failed to quantify any such animals which he says he owns.  I find the evidence upon which the Applicant does rely, namely the invoice from Southern Counties Auctioneers dated 19th October 2010 as not being probativeof anything other than an invoice bearing his name related to the sale of an animal ;

(2)	that any grazing which may have occurred by any beast on the Glebe is insufficient to give rise to prescriptive rights having regard to the legal principles set out above; 

(3)	there has been a complete lack of any documentary evidence supplied by him, or from the Verderer’s Court or from the Verderers of the New Forest, or elsewhere that Acres Down Farm has ever acquired as the dominant tenement any rights of grazing over the Glebe. 

(4)	has provided no documentary or other evidence, other than the letter dated 21st  January 2011 from the Verderers of the New Forest, to demonstrate the nature and extent of the rights that Acres Down Farm may have over the New Forest land, or to indicate the boundaries of Acres Down Farm as the claimed dominant tenement which have never been adequately identified;

(5)	admits to not owning any part of Acres Down Farm, although it is contended that he has, apparently in his capacity as “occupier” of Acres Down Farm, to some form of rights over the New Forest. This is to be seen in the letter dated 21st January 2011 from the Verderers of the New Forest.  However, he has provided no factual information of such right, and in particular does not provide any details of the legal basis of such a right. However, in this context the legal or beneficial interest that the Applicant held in Acres Down Farm was terminated in 1984 when his interest was transferred to his ex-wife on their divorce;

(6)	There is no or no adequate evidence that animals belonging to Acres Down Farm have ever grazed the Glebe for the whole of the relevant thirty year or sixty year prescriptive period next before suit, or for the whole of any twenty year period after 1970. 

(7)	Has failed to demonstrate any prescriptive claim based upon the arising either under the doctrine of Lost Modern Grant or under the 1832 Act on the basis of the Respondents’ contentions as set out in paragraph 42, above.  In particular the Applicant has failed to adduce any or any  adequate evidence that animals belonging to Acres Down Farm have ever grazed the Glebe for the whole of the relevant thirty year or sixty year prescriptive period next before suit, or for the whole of any twenty year period after 1970. 

47.	Further, It is clear, in my judgment, that throughout the period since 1974 the various owners of the Glebe have repeatedly tried to keep it securely fenced and gated, the evidence of such attempts I have set out in paragraph 39 above, which evidence I accept as wholly reliable.  This evidence demonstrates that the Glebe has never formed part of any servient tenement over which any dominant tenement had the right to graze its beasts.  Thus, I am satisfied on the factual matrix that there has never been any communing by animals sufficient to satisfy the principles of the 1832 Act or under the doctrine of lost modern grant.

48.	If I am incorrect in this interpretation and that in principle a prescriptive right has been acquired by the Applicant, then the second question arises for consideration, namely, the jurisdictional position.

The Jurisdictional Position	
Does the Glebe form part of the New Forest?
49.	Insofar as the Glebe is concerned, the issue arose during the course of this case as to whether or not the Glebe forms part of the New Forest lands.  Insofar as the Respondents are concerned, they have adduced evidence that the Glebe is not part of the New Forest (see the witness statement of Mr Bakewell, and his oral evidence).  The Respondents’ case is that the Glebe therefore does not form part of the New Forest and therefore is not subject to the New Forest legislation, and in particular the system of registration under the New Forest Claims Act 1854. 

50.	For his part the Applicant asserts that the Glebe is part of the New Forest and is subject to its special statutory scheme, but has adduced no documentary evidence that it falls within the perambulation of the New Forest. Indeed the evidence in the case points in the opposite direction. In the case of Newman v Bennett (see above), it is clearly stated that the Wastes of the Manor of Minstead do not form part of the New Forest, and this must include the Glebe as it is wholly surrounded by the Wastes.  The Verderers of the New Forest in their letter dated 21st January 2011 do not state that the Applicant is entitled to exercise any Forest rights over the Wastes of the Manor of Minstead, and in particular over the Glebe, but such rights as do exist are exercisable over the Crown Lands of the New Forest. 

51.	Having regard to the above, I find that the Glebe does not form part of the New Forest lands and is therefore not governed by the New Forest legislation. That being so on the jurisdictional basis the Application must fail at the first hurdle.

The CRA 1965
52.	The 1965 Act was enacted in order to provide a complete register of common land and town or village greens with rights exercisable over such land, together with a record of its ownership, throughout England and Wales.  There was a period for registration between 1967 and 1970 which was mandatory to the extent that any land unregistered after the determination of that period, and capable of being registered, ceased to be common land or town or village green.  The CRA 1965 prima facie applied to all rights of common in all parts of England and Wales save for a number of limited exceptions contained in section 11(1) of the CRA 1965.  That section provided that the provisions of the Act should not apply to the New Forest or Epping Forest, nor to any land exempted from those provisions by order of the Minister, and also should not be taken to apply to the Forest of Dean. This position has been preserved by section 5 of the 2006 Act.

53.	Thus on the basis that the Glebe:-

(1)	Does not form part of the New Forest and therefore does not fall within the New Forest legislative scheme, 

(2)	 It was common land with common rights exercised over it as at 5th August 1965, 

then it should have been registered in accordance with the provisions of the CRA 1965 by 3rd  January 1970 if the common rights were to be preserved.

54.	In this regard it is to be noted that the period for lodging applications for registration of common rights expired on 2nd January 1970, and the time limit for registrations expired on 31st July 1970 (see articles 2 and 3 of the Commons Registration (Time Limits) Order 1966). There is no evidence that any attempt was made to register the Glebe under the provisions of the statute, and that being so (and subject to section 13(b) of the CRA 1965) if it had qualified as common land subject to rights of common (as defined in the CRA 1965) then failure to register by the due date meant that it ceased to be common land and any rights of common in principle were extinguished by 31st July 1970. 

55.	The purpose of excluding the New Forest from the CRA 1965 was manifestly because it had its own existing system of registration under the New Forest Claims Act 1854 which applied only to the Crown Wastes (see A-G v Reynolds [1911] 2 KB 880).  The Crown Wastes subject to rights of common registered under the 1854 Act constitute the New Forest for the purposes of registration. 

56.	However, section 13(b) of the CRA 1965 provides for the amendment of the registers maintained under the CRA 1965 by enabling regulations to be passed to provide for such amendment where “any land becomes common land or a town or village green” after 2nd January 1970.

57.	The Regulations giving effect to section 13 were the Commons Registration (New Land) Regulations 1969 which came into force on 3rd January 1970.  The notes to the model form 29 for an application for the registration of new common land provided four methods whereby land could become common land:-

(1)	By or under any Act of Parliament otherwise than as substituted land;
(2)	By a grant by the owner of the land for rights of common over it;
(3)	By rights of common being acquired over it by prescription; and
(4)	By substitution or exchange for other land which has ceased to be common land under certain statutory enactments.

58.	Two aspects arise for consideration from this legislation.  First, section 13(b) of the CRA 1965 is protected from repeal by the Commons Act 2006 in the non-pilot (or “pioneer”) areas by the Commons Act 2006 (Commencement No. 2 Transitional Provisions and Savings) (England) Order 2007.  Paragraph 4(3)(a) of this Regulation provides as follows:-

“In relation to any area of England, section 13(b) of the CRA 1965 and Regulations made under it shall – 

(a)	Until the coming into force of section 6 of the 2006 Act in relation to that area, continue to have effect insofar as they relate to land which becomes common land other than by virtue of any instrument made under or pursuant to an enactment….
(b)	….”

59.	Secondly, however, insofar as the pilot (or “pioneer”) registration authorities are concerned, the provisions of the 2006 Act apply, and thus the provisions of section 13(b) have been repealed and section 6 of the 2006 Act has been brought into force.

60.	Thus in principle in Hampshire the rights of common could still continue to be acquired over common land by prescription and for the amendment of the register accordingly. However, as it is impossible to register new rights over land which achieved registration during the initial registration period, it is also impossible to claim rights by prescription over land already registered as such rights have become unexercisable.  In short, any application to register a right based upon prescription is doomed to failure if either the right was registrable, or the land over which it is claimed was registered, under the CRA 1965 before 3rd January 1970 (see regulation 3 of the Commons Registration (New Land) Regulations 1969).  

61.	Thus, I direct the Chief Land Registrar to cancel the original application.  As is usual in cases in this jurisdiction costs follow the event.  I therefore invite the Respondents’ solicitors to produce a summary costs in form N260 within 28 days of this Decision.

Dated this 31 August 2011

By Order of The Adjudicator to HM Land Registry