Roy Stephen Farrow v Duncan Boag
[2023] UKUT 167 (LC)
Paul Rushmer & Ors v Central Bedfordshire Council
23 June 2023
[2023] EWHC 1341 (Ch)
High Court
People argued about where a common ended. A judge looked at old maps and paperwork to figure out the correct boundaries. The judge decided which map was right and said that a newer definition of 'common' should be used when interpreting old rules.
Key Facts
- •Two couples own adjoining properties near Studham Common and are concerned about the unclear relationship between their land and the common.
- •The Central Bedfordshire Council is the commons registration authority and maintains a register of common land.
- •Claimants initially raised concerns about parking on common land, leading them to discover apparent anomalies and deficiencies in the register, particularly concerning the map defining Studham Common's boundaries.
- •The Claimants filed a Part 8 claim seeking declarations regarding the extent and boundaries of Studham Common, including the validity and interpretation of the register and a 1911 management scheme.
- •The Defendant applied to strike out the claim, arguing that the relief sought was beyond the High Court's jurisdiction and constituted an abuse of process.
Legal Principles
Conclusiveness of the commons register
Commons Registration Act 1965 (CRA 1965), section 10
Limited High Court powers to rectify the register
CRA 1965, section 14
Provisions for amending the register
Commons Act 2006 (CA 2006), section 19
Jurisdiction to grant declaratory relief
Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387
Abuse of process – O'Reilly v Mackman
O'Reilly v Mackman [1983] UKHL 1
Presumption of regularity
Calder Gravel Ltd v Kirklees MBC [1989] 60 P&CR 322
Updating principle of statutory interpretation
Bennion, Bailey and Norbury on Statutory Interpretation (8th edition), section 14.1
Presumption against absurdity
Bennion, Bailey and Norbury on Statutory Interpretation (8th edition), section 13.1
Outcomes
The Defendant's application to strike out the claim was dismissed.
The court found it had jurisdiction to determine the true contents of the register, specifically regarding the correct map and whether a photocopy of the register entry was valid, but not to correct or clarify the register boundaries.
The court declared that the photocopy of the register entry for Studham Common is to be relied upon.
The original is missing, and this is the only available evidence.
The court declared that the December 1967 map, not the October 1967 map, is the correct map defining the boundaries of Studham Common.
The December 1967 map better conforms to the 1966 Regulations and provides a clearer delineation of the common's boundaries.
The court declared that the 1911 Scheme should be interpreted by reference to the current legally recognised boundaries of Studham Common, as defined by the December 1967 map.
Applying the updating principle and presumption against absurdity to the Commons Act 1899, the court reasoned that the 1911 Scheme's reference to 'common' must be understood in its current context, not that of 1911.
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