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Securing commons: The right and the just? De-mystifying commons registration

Citation: Taylor v Betterment Properties Ltd [2012] EWCA Civ 250

In the recent decision in Taylor v Betterment Properties, the Court of Appeal has provided useful guidance on two questions arising under the Commons Registration Act 1965 and potentially of wider implication. 

The first involved an analysis of the steps which a landowner might reasonably be expected to take in order to put local inhabitants on notice that objection was taken to the "user as of right" being claimed.  The second involved consideration of the jurisdiction to amend the register under s. 14 “..if the court deems it just to rectify the register”.

The first issue hinged on whether there had been user of right for a period of 20 years between 1977 and 1997.  The land in question was subject to public footpaths.  For many years it had been grazing land let out by to local farmers. By 1980 the grazing use had ceased as locals had broken the fences and disturbed the cattle with dogs.  Until 1984 the owners had put up notices that this was private land but the signs had been removed regularly by persons unknown.  However a considerable number of local inhabitants making lawful use of the footpaths, and not involved in breaking fences or removing signs, had made regular use of the land for games and other such purposes. In 2001 the local council, following a public enquiry, registered the land as common land under s 13.  The landowner having sold to Betterment, the latter made an application under s 14 to correct the register. 

At first instance there was much evidence from local inhabitants to the effect that they had never seen any notices on the land and had used it without objection. The former landowners gave evidence that they had put up notices regularly, only to have them removed, and the judge accepted that they had done so until 1984.  He considered that the owners had done all that they reasonably needed to do in order to make it clear that persons venturing beyond the footpaths were trespassers; that even if members of the public had not seen those notices this was sufficient to prevent user being of right; and that it was just to rectify the register. The appeal was on the grounds that the judge was wrong to have held i) that user was not of right and ii) that it was just to order rectification.

For Patten LJ, giving the leading judgment, a fundamental question of law was whether and to what extent signs stating the landowner’s opposition to the use of the land must ultimately come to the attention of all users if the landowner has in fact taken all reasonable steps to achieve this.  He reviewed the authorities, explaining that user as of right means, as in the case of the Prescription Act 1932, "nec vi, nec clam, nec precario", i.e. peaceful, open and not based on any licence from the owner of the land, and that it will not qualify if it is known to the user that the use is contentious.  “If the landowner displays his opposition to the use of his land by erecting a suitably worded sign which is visible to and is actually seen by the local inhabitants then their subsequent use of the land will not be peacable”.

That left the question of the lengths to which the landowner should go.  The authorities established that the landowner must take reasonable steps to bring his opposition to the actual notice of those using his land.  Patten LJ agreed with the judge that the landowner did not have to do the impossible.  “His response must be commensurate with the scale of the problem he is faced with. Evidence from some local inhabitants gaining access to the land via the footpaths that they did not see the signs is not therefore fatal to the landowner’s case on whether the user was of right.  But will in most cases be highly relevant evidence as to whether the landowner has done enough to comply with what amounts to the giving of reasonable notice in the particular circumstances of the case...  It seems to me that there is a world of difference between the case where the landowner simply fails to put up enough signs or puts them in the wrong place and a case such as this where perfectly reasonable attempts to advertise his opposition to the use of his land is [sic] met with acts of criminal damage and theft”.

Patten LJ regarded the second question as in some respects the more important; as it raised some fundamental questions as to what competing factors may be sufficient to prevent rectification under s 14.  It was clearly not enough to find an error in the original registration and the court would need to reach a positive conclusion that it was just to order rectification.  The following general principles emerge:

  • The landowner’s Article 1 rights are engaged by the degree of control which registration imposed on his land.  Where the original registration was wrong, resisting rectification would require considerable justification, if indeed it could be justified at all;
  • It is not relevant either to consider the reasons why the s 13 registration was wrong or the manner in which the case was run below;
  • That the new landowner bought the land at an advantageous price reflecting registration is a relevant factor but (Sullivan LJ dissenting) is not likely to be a significant one because to allow the register to remain unaltered would still amount to an unjustified interference with his legal rights;
  • (Sullivan LJ dissenting) Delay by the landowner, while relevant, will not be a barrier to rectification unless there is material before the court to show that other public and private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the inhabitants or other relevant interests.