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England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> ADM Milling Ltd v Tewkesbury Town Council & Ors [2011] EWHC 595 (Ch) (16 March 2011)
Cite as: [2012] Ch 99, [2011] 2 P &CR 4, [2011] 3 WLR 674, [2011] EWHC 595 (Ch), [2011] NPC 30

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Neutral Citation Number: [2011] EWHC 595 (Ch)
Case No: HC09C02229


Royal Courts of Justice
Strand, London, WC2A 2LL
16 March 2011

B e f o r e :


- and -



Mr William Ainger (instructed by Thomson Snell & Passmore) for the Claimant
Miss Tamsin Cox (instructed by Hedleys) for the First Defendant

Hearing dates: 8th & 9th March 2011



Crown Copyright ©

    Mr Justice Lewison:


  1. Tewkesbury grew up on the east bank of the Avon close to its confluence with the river Severn. Its origins are older than the Domesday Book, in which it was already recorded as having 13 burgesses and a market. Its three main streets were High Street, Church Street and Barton Street. At some point in the middle ages part of the waters of the Avon were diverted through the Mill Avon. This may have been a defensive watercourse; or it may simply have been formed in order to drive water mills. Between the west bank of the Mill Avon and the river Severn lies Severn Ham. According to Dyde's History and Antiquities of Tewkesbury (1798) it contained "nearly 200 acres of as rich meadow land as any in the kingdom". He added that:
  2. "It is occasionally used as a race ground; is commonable to the freemen and occupiers of front houses, from Allhallow tide to Candlemas, and is the property of Thomas Dowdeswell, Esq of Pull-Court and others."
  3. The substantive issue in the present case is whether there are rights of public access over that part of Severn Ham which is now owned by ADM Milling Ltd ("ADM"). ADM is the registered proprietor of two parcels of land registered under Title Numbers GR18213 and GR134102. They form the north-eastern tip of Severn Ham. They were formerly used as flour mills, but the mills closed down some years ago. The principal mill buildings, which had been Healings Mill, were built in 1865 but almost certainly on the site of earlier buildings. They are no doubt suitable for redevelopment as apartments for waterside living. ADM is concerned that the development prospects of its land is not compromised by adverse rights, especially public rights. The principal route by which such rights might exist is under section 193 of the Law of Property Act 1925.
  4. ADM, represented by Mr David Ainger, has therefore brought this action seeking declarations about the status of its land. It joined the Tewkesbury Town Council, a number of trustees, and the Attorney General to its claim. One of the reasons for joining the Town Council, for whom Ms Tamsin Cox appears, is that the first of the declarations sought claimed a declaration affecting not only ADM's land, but also the Town Council's adjoining land which consists of the rest of Severn Ham. Ultimately the Town Council did not object to its joinder as a proper party; but said that no declaration should be made in relation to its own land, in which ADM had no interest. It was content for public rights to exist over its own land; and had no concern whether public rights did or did not exist over ADM's land. In the end Mr Ainger accepted that I should not make declarations about the Town Council's land; so this procedural wrangle fell away. The action was discontinued against the Attorney General; on the basis that the Town Council would advance such arguments that there were which would protect the public interest. The trustees have played no part in the action.
  5. We use the word "aftermath" nowadays to mean the state resulting from some unpleasant event. But it has a technical meaning, which is the meaning in play in this case. It means the crop of grass which springs up after the first mowing in early summer. The right to the aftermath therefore means the right to the second grass or hay crop. That is the right with which this case is concerned.
  6. Local legislation

  7. The growing economy of the eighteenth century led to increased traffic on England's roads. Many of them were little more than tracks (or the remnants of Roman roads) maintained by the parishes through which they ran. Better infrastructure was needed. The establishment of turnpike trusts was a popular means of financing road improvements. Tewkesbury lay on the main turnpike road between Chester and Bristol. In 1786 an Act was passed for road improvements in Tewkesbury, to be carried into effect by Commissioners. The details of the Act need not concern us. What is important for this case is what the Act did not authorise. A proviso to section 19 of the Act precluded the Commissioners from altering, repairing or repaving "the Key and Key Bridge", which were to continue "to be paved and repaired by and under the direction of the said Bailiffs, Burgesses and Commonalty, as the same have been by them from time to time heretofore paved and repaired." However, it seems that the borough did not do a good job on Key Bridge, because in 1808 another Act was passed for taking down and rebuilding it. That Act recited that the Key Bridge:
  8. "… is very ancient and decayed, and from the Violence of the Floods is so much injured as to be dangerous to Travellers, Carriages and Cattle passing over the same"
  9. This Act also appointed Commissioners to carry its purposes into effect. Section 14 empowered them to take down the old bridge, provide a temporary bridge, and then a permanent "good and substantial" new toll bridge to be built with iron, stone or other materials. They were also empowered to make proper roads at each end of the bridge; and they were required to maintain them to a length of 100 yards from the bridge. In fact the construction of the bridge was delayed because of lack of funds; but a cast iron bridge was eventually erected in 1822.
  10. The eighteenth century was also the great age of agricultural improvement. Jethro Tull introduced mechanisation; and Turnip Townshend and others changed crop rotation. The old strip farmed open fields of the middle ages were seen as an impediment to progress; and a multiplicity of rights of common hampered efficient land use. By the end of the century the enclosure movement was in full swing. In The Deserted Village Oliver Goldsmith lamented the passing of the old order:
  11. "Where then, ah! where, shall poverty reside,
    To 'scape the pressure of contiguous pride?
    If to some common's fenceless limits stray'd
    He drives his flock to pick the scanty blade,
    Those fenceless fields the sons of wealth divide,
    And ev'n the bare-worn common is denied."
  12. Severn Ham's turn came in 1808. In that year Parliament passed an Inclosure Act authorising the enclosure of Severn Ham. The long title to the Act set out its purposes:
  13. "An Act for inclosing Lands in the Borough and Parish of Tewkesbury, in the County of Gloucester, and for vesting the after or latter Math of a Meadow called Severn Ham, within the said Borough and Parish, in Trustees for certain Purposes."
  14. The preamble set out the factual background. So far as relevant it was as follows. Within the borough there was a "large Open and Common Meadow called Severn Ham." Thomas Dowdeswell and others were the proprietors of Severn Ham. The land in question was within the manor of Tewkesbury, of which the borough corporation was the lord of the manor. (According to the Victoria County History the manor had been granted to the borough corporation in 1610. It appears that the borough corporation sold the lordship in 1837, but by 1935 had reacquired it.) The properties of the several proprietors in the fields and meadows "are very much intermixed and dispersed in small Parcels, and inconveniently situated; and are therefore incapable of much Improvement in their present State". It went on to say that it would be highly advantageous to all parties "if such Rights of Common were altogether extinguished … and if such Field, Meadows and Lands, were divided and allotted, and if the same (except the said Meadow called Severn Ham) were inclosed". The preamble described the rights of common themselves as follows: "the Burgesses or Freemen of the Borough of Tewesbury aforesaid, resident within the said Borough for the Time being, and the Occupiers for the Time being of certain Houses situate within the said Borough, are entitled to a Right of Common for a limited Number of their own Cattle only, … in the said Meadow called Severn Ham from the Twelfth Day of August to the Thirteenth Day of February in every Year, both inclusive". Although the preamble to the Act did not go into any more detail about the extent of the rights, the Victoria County History says that the right was a right for each freeman to pasture 3 horses, 6 cows, or 10 sheep (provided they were his own); and for each burgess to pasture twice as many. The Act went on to say that those rights "have become of little Value to the several Persons entitled to Rights of Common thereon, and it would be highly advantageous to all parties interested therein, if such Rights of Common were altogether extinguished … and if the after or latter Math of the said Meadow called Severn Ham were invested in Trustees for the several Purposes herein-after mentioned." Messrs Fulljames and Smith were appointed as commissioners "for dividing and allotting the said Common Fields, Meadows and Lands, and for inclosing the same (save and except the said Meadow called Severn Ham)". Their powers were set out in the Act. Section 19 required them to allot land equal in value to one ninth of Severn Ham to the impropriator of tithes (a Mr Dipper). Section 24 of the Act provided that:
  15. "… the After or Latter Math of the said Meadow called Severn Ham, shall be, and the same are hereby declared to be, vested in the said Trustees and their Successors, to be appointed by virtue of this Act, for ever freed and discharged of and from all Right, Title, Interest, Claim and Demand whatsoever, which any Person or Persons could or might have in or to the same, or any Part or Parts thereof, upon such Trusts nevertheless, and to and for such Uses, Intents and Purposes, as are mentioned, expressed or declared of and concerning the same in and by this Act."
  16. Section 34 appointed trustees to carry the Act into execution. Section 46 empowered the trustees to let the after or latter math annually; to let it in pastures; or to grant 21 year leases of it. However, it precluded them from taking a fine, premium or foregift. Section 47 imposed restrictions on the use of the Ham in the following terms:
  17. "… it shall not be lawful for the said Trustees, their Tenant or Tenants, Lessee or Lessees, to stock or depasture at any Time or Times whatsoever, on the said Meadows called Severn Ham, any Horses of His Majesty's Regiments of Dragoons, or any Bulls or Pigs; and that from the Tenth Day of October to the Twentieth Day of November in every Year it shall not be lawful for the said Trustees … to stock or depasture any Horses or Neat Cattle on the said meadow called Severn Ham, unless there shall at the same Time be stocked or depastured thereon Three Sheep at the least for every acre of which the said Meadow Called Severn Ham consists; and that from the Twentieth Day of November to the Thirteenth Day of February in every Year, it shall not be lawful for the said Trustees … to stock or depasture any Horses or Neat Cattle whatsoever on such Meadow, but that the same shall annually, during the said last mentioned Period, be stocked or depastured with Sheep exclusively."
  18. Section 48 provided that nothing authorised or empowered the landowners of Severn Ham to depasture any horses, cattle or sheep on the meadow "between Hay Harvest and the Day on which the same would have become subject to Common if this Act had not been passed." Nor were they authorised to cut the grass after 12th July, if it had been eaten off by their stock in the preceding part of the year; "but that the Grass and Herbage to grow upon such Part or Parts of the said Meadow which shall have been so eaten off or grazed as aforesaid, shall, from and after the Twelfth Day of July in every such Year, be vested in the Trustees by this Act appointed". Section 49 required the trustees to divide up the rents between the burgesses and freemen of Tewkesbury who would have been entitled to rights of common but for the passing of the Act.
  19. By 1811 the Commissioners had made their inclosure award. As foreshadowed by the Act, the Commissioners allotted parts of Severn Ham to the improprietors of tithe. The parts allotted amount in aggregate to some 43 acres. However, these allotments were not enclosed. None of the parts of Severn Ham allotted by the Commissioners are parcels within ADM's title. The plan referred to in the award itself shows The Quay at the north-eastern tip of Severn Ham. It also shows buildings immediately to the south of The Quay, and at the very north-eastern tip.
  20. The age of agricultural improvement was succeeded by the railway age, which came to Tewkesbury in the early Victorian period. The making of a railway from Birmingham to Gloucester had been authorised by an Act of 1836; and a similar Act relating to Tewkesbury was passed in 1837, the year of Queen Victoria's accession. The 1837 Act authorised the Birmingham & Gloucester Railway Company to make a branch line from Ashchurch terminating "at or near a certain place called the Quay in the Parish of Tewkesbury … near to a public house there called the Star". It also incorporated the provisions of the 1836 Act.
  21. The Quay and the mills

  22. It is time now to tell some of the story of The Quay and the mills. The story is so old that it cannot be proved by direct evidence: the evidence has to come from history books. According to the Victoria County History the Quay was recorded in 1407, and in 1519 money was given for its repair. In 1583 it was newly paved.
  23. As I have already said, the main streets in old Tewkesbury were High Street, Church Street and Barton Street. But Mr Dyde records that one of the chief lanes was Quay Lane; and a map in his book shows it running from the High Street to the bank of the Mill Avon, and across it by means of a bridge to the Ham. Its point of arrival on the Ham is labelled "Quay" and immediately to the south his map shows two buildings with enclosed yards. The bridge across the Mill Avon to the Quay is plainly the same bridge that the Act of 1786 called the "Key Bridge" for whose repair the borough was responsible. It was that bridge that was rebuilt in 1822. It is also the terminus of the railway authorised by the 1837 Act. The Birmingham & Gloucester Railway Company set about acquiring land as authorised by their Acts. They appear to have done so by agreement without the need to resort to compulsory powers. One parcel of land was conveyed to them by Messrs Dowdeswell on 27 March 1844. The parcels clause describes it as:
  24. "All that piece or parcel of land or ground situate lying and being at or near to a place called The Quay in the Town of Tewkesbury aforesaid extending from the eastern corner of a Rick Yard in the occupation of William Browett next to the front part of a messuage or public house called the Severn Trow to or adjoining a place commonly called the Lower Landing… and bounded on the north by the river called the Old Avon on the south in part by the said Rick Yard and on the remaining part by other land of [Messrs Dowdeswell] on the east by the road adjoining the said river and on the west by the said Lower Landing…"
  25. The conveyance plan shows the rick yard numbered "3". It also shows other buildings in a row to the east of the rick yard, including the Severn Trow. This land corresponds with land shown on an undated plan which also shows (to the west of the mill) an area labelled "Rick Yard". A rick yard was an enclosed area in which hay could be stored in ricks. It had to be enclosed otherwise the grazing stock would have been able to get at the hay. Ordnance Survey maps from 1885 onwards show a railway running along the quayside.
  26. Tewkesbury's position on the rivers Severn and Avon made it a convenient place to mill grain which could be easily transported to and from the mills. The Victoria County History records a number of mills: some called the "town" or "borough" mills in order to distinguish them from the Abbey mills. The Borough Mills, standing between the Old Avon and the Mill Avon were the subject of a grant in 1581 and 1733. The mill was rebuilt in 1865 and another mill added in 1889. By 1870 the mills belonged to the Healing family and they remained active in the business for many years. It is those former mills that now form part of ADM's land.
  27. Borough Mills are shown on Ordnance maps from 1885 onwards. To my eye at least they appear to be a cluster of buildings at the north-eastern tip of the Ham. The railway runs between two of the buildings at the eastern end of the complex; and the map shows some kind of bridge (presumably a footbridge) connecting the two buildings over the railway. A map associated with the building of the railway also shows the Star public house in the same vicinity as the mills.
  28. The Commons Registration

  29. On 1 March 1967 Mr Richard Woodfin of 62 Church Street Tewkesbury applied to register a right of common. In his application he described the land over which the right was claimed as follows:
  30. "The Severn Ham, Tewkesbury. That land enclosed by the River Severn, the river Avon to its junction at the Tewkesbury Lock with the Mill Avon, and the Mill Avon to its junction with the River Severn at the Lower Lode. The rights are governed by an Act of Parliament 1808, 48 Geo III and the act and a large plan is deposited with the county Archivist."
  31. He described the right of common as entitlement to the aftermath. A rather indistinct plan accompanied the application, but it appears to show the whole of the island (including what is now ADM's land). On 19 May 1967 the Gloucestershire County Council provisionally registered a common in response to the application as register unit CL 21. The register describes the land as:
  32. "The tract of about 178 acres known as the Severn Ham in the borough of Tewkesbury, Gloucestershire, as marked with a green verge line inside the boundary on sheet S083SE of the register map and distinguished by the number of this register unit."
  33. The green verge line did not include the mill buildings or the quay, but (to my eye at least) the green verging is tightly drawn around the curtilege of the two buildings shown on the Ordnance map. However, a supplemental map, referred to in the registered description of the right of common is marked with a red line to show the area over which the right of common is exercisable. The red line does not include land to the south and west of the mill buildings which was included within the green verging. The register describes the right of common thus:
  34. "Exclusive right to the Aftermath that is the right to grazing from the 12th August until the 13th February in every year. From the 12th August to 20th November 200 cattle or 200 horses or 1000 sheep may be grazed. (However, from 10th October to 20th November horses or neat cattle shall not be grazed unless there shall at the same time be stocked or depastured thereon three sheep at the least for every acre). From the 20th November until 13th February only 1000 sheep may be grazed over the whole of the land comprised in this register unit."
  35. On 9 October 1970 the County Council recorded that the entry having been undisputed, it became final on 1 October 1970. There were a number of individual claimants to the right of common, including the Trustees of Tewkesbury Commons, who were the successors to the trustees appointed by the 1808 Act. Mr C.A. Settle QC, a Commons Commissioner, held an inquiry into these claims. By his decision made on 9 March 1976 he refused to confirm the individual registrations, leaving the Trustees as sole registered commoners. In the course of his decision he said that:
  36. "The registration of the land as common land in the Land Section and the Registration of the Trustees' grazing rights … are final."
  37. As from 1 April 1977 the lordship of the manor of Tewkesbury was transferred by statutory instrument from the Tewkesbury Borough Council to the Tewkesbury Town Council (which, despite its name, is legally a parish council).
  38. In 1983 Allied Mills Ltd (ADM's predecessor in title) applied to the Secretary of State for permission to construct buildings and other works on Severn Ham. The other works included the making of a footbridge for use by the public. The application was made under section 194 of the Law of Property Act 1925. One of the objections to the proposal was the potential loss of a public right of way through the mill. The Secretary of State gave consent to the works. His conclusion was:
  39. "The conclusion reached is that the relatively small area of common land proposed to be taken for these works would not adversely affect the exercising of grazing rights or the enjoyment of the Ham by the public as a place for air and exercise, that the relocation of the access, by way of a footbridge south of the Mill, would provide a safer and more attractive approach to the Ham, and that it is expedient that consent should be given."
  40. The proposed works included the construction of a new parking area, maintenance depot and sack store. In order to accommodate those parts of the proposed works, Allied Mills bought part of Severn Ham from the council, and that land was conveyed to them by a conveyance of 21 May 1986. The land in question was immediately to the south of Allied Mills' existing land holdings. That land is now comprised in Title Number GR 134102.
  41. The proposed works also included the erection of a boundary fence on what had been common land. In consequence Allied Mills entered into an agreement with the Trustees of Tewkesbury commons also on 21 May 1986. The agreement recited that Severn Ham was registered as a common. By clause 1 of the agreement the Trustees consented to the erection of a boundary fence and within the fence the erection of the maintenance depot. In return, by clause 2 Allied Mills agreed to pay the Trustees "an annual sum by way of compensation for the loss of grazing on the said property". The company also agreed to grant the trustees a right of way with or without vehicles, in the event that the existing public right of way was stopped up.
  42. On 12 August 1987 the Tewkesbury Borough Council stopped up a public footpath and bridleway running through the mill site; and also provided for its diversion immediately to the south of the enlarged mill complex.
  43. ADM's title

  44. As mentioned, ADM's title is all registered land. The more northern of the two titles, GR 18213, is also the more complex. This part of the story begins with the Ordnance map 1923 edition. It is necessary to identify parcel 249 as shown on that map; and to make some educated deductions about what topography it depicts.
  45. I must begin by explaining some of the cartographic conventions of the Ordnance map. Parcel 249 is given as having an area of 2.784 acres. The number itself appears in a small rectangular enclosure which, given the scale of the map, cannot possibly amount to that acreage. The explanation is found in the notation of braces (which look a bit like this ?). Where a brace appears straddling a solid line on the map, the parcels on each side of that line are included in the parcel and its acreage. Thus parcel 249 includes an open area surrounding the central buildings; a trapezoidal area to the south of that open area; two rectangular buildings joined by a bridge under which the railway runs; an irregular quasi-rectangular enclosure immediately to the south of those buildings, and the quayside and railway itself. In earlier editions of the Ordnance map the same parcel number appears in different rectangles, also braced; which reinforces this conclusion. The open area, on the southern side is shown by a pecked line which, according to cartographic conventions, denotes a physically visible feature but one that presents no obstacle to pedestrians. It could therefore denote a change of surface (such as a change from grassland to paving or hardstanding). The pecked line is itself intersected by two footpaths, which would reinforce the deduction that there was no obstacle for pedestrians.
  46. By a conveyance of 20 April 1933 the Borough Council acquired a large portion of Severn Ham. The vendor was the Rev Berens-Dowdeswell as life tenant under a settlement; and the trustees of the settlement joined in to receive the capital money. (One of those trustees was the son of Sir Benjamin Cherry: Sir Benjamin himself having been a former trustee of the settlement). The parcels conveyed fell into two parts. The first part (coloured pink on the conveyance plan) was described in the First Schedule to the conveyance. This consisted of the majority of Severn Ham south of parcel 249. The second part was parcel 249 itself which was shown on the plan but left uncoloured. The parcels clause described it as:
  47. "…land known as Knaves Acre (so far as vested in the Vendor) situate in the said Severn Ham on the Quay adjoining the Borough Flour Mills."
  48. The Second Schedule to the conveyance described matters subject to which the land was sold. The first of these was:
  49. "The Lammas rights of the Trustees of the Tewkesbury Commoners to the Second Math grown thereon between the 12th August and 12th February created by statute which so far as such rights affect Knaves Acre have been (it is believed) commuted into a payment of one moiety of the rents of the lands and buildings thereon."
  50. There is, however, no documentary trace of any such commutation ever having taken place; or of any such payment having been made.
  51. In 1935 there was a rearrangement of highways on the Quay. One highway was stopped up and another created in its place. This rearrangement was accompanied by an exchange of land between the borough council and S Healing & Sons Ltd. As part of the deal the company acquired a small strip of land immediately to the south of its southernmost mill. This strip of land was the first addition to what had been Healings' land for many years.
  52. By a conveyance of 10 May 1938 further land was conveyed to S Healing & Sons Ltd. The vendors were the borough council and nine of the trustees of the Tewkesbury Commoners. The conveyance recited that:
  53. "The Council are seised of the land hereinafter described and intended to be conveyed as to the first math vesture or cutting for one equal moiety of the net rents and income thereof in fee simple in possession and the Trustees are seised of the said land as to the After or Latter Math or one equal moiety of the net rents or income thereof."
  54. The conveyance went on to convey to Healings:
  55. "ALL THAT piece or parcel of land or yard situate at the Quay in the Borough of Tewkesbury … reputed to form part of a larger piece or parcel of land called or known as Knaves Acre."
  56. The land was shown on the conveyance plan, and was stated to be in the occupation of Mrs Walkley as tenant. The land in question was immediately to the west of the southern flour mill, and had appeared on earlier maps as an enclosed rick yard.
  57. By a conveyance of 8 August 1949 further land was conveyed to S Healing & Sons Ltd. The vendors were again the Borough Council. The conveyance recited not only that the council were seised of the land, but also that the Lammas rights were vested in them as trustees. There is no documentary evidence to support this extraordinary assertion. The conveyance went on to convey to Healings the parcel of land described in the First Schedule as follows:
  58. "ALL That piece or parcel of land containing .489 acres or thereabouts forming part of land known as Severn Ham … and being part of number 261 on the Ordnance Map … which said piece of land is for identification purposes only more particularly delineated and coloured pink on the plan annexed hereto TOGETHER with the rights of the Second Math grown thereon and known as the Lammas Rights as are vested in the Council as Trustees of the Tewkesbury Commoners."
  59. The first mistake was the misidentification of the land. The land shown on the plan was not part of OS number 261: it was part of OS number 249. The second mistake was the collocation of the two phrases "for identification purposes only" and "more particularly delineated and coloured pink on the plan"; which are self-contradictory. In the present case I consider that the plan must take precedence over the verbal description. The third mistake was the purported conveyance of the Lammas Rights, of which the borough council never was the trustee. I am, however, satisfied that what Healings acquired by this conveyance was the part of OS parcel 249 that was coloured pink on the plan. This, as it seems to me, was also the view of the plans section of the Land Registry, because the filed plan shows this as part of the old OS number 249.
  60. The final parcel making up this title was conveyed to Healings by the British Transport Commission. The land comprised in the 1844 conveyance which had been acquired by the Birmingham & Gloucester Railway Company passed to the British Transport Commission as a result of the various reorganisations of railway transport culminating in nationalisation. In 1957 the British Transport Commission conveyed that land to S Healing & Sons Ltd who by then were the owners of the adjoining mill. The 1957 conveyance included the railway itself, a bridge over the Mill Avon and part of Quay Street. What remains of that land in ADM's hands is now part of Title Number GR 18213.
  61. The southerly part of ADM's title is Title Number GR 134102. This is relatively straightforward. It consists of the land that the borough council conveyed to Allied Mills by the conveyance of 21 May 1986.
  62. The nature of the rights created by the 1808 Act

  63. The essence of the right created by the 1808 Act was that it was an exclusive right to the aftermath. The landowners of Severn Ham were precluded by the Act from depasturing their own beasts on the land between the end of the hay harvest and the following 13 February. This kind of right is, strictly speaking, known to the common law as a right of sole vesture (sometimes sole herbage or sole pasture). If one is technical about legal taxonomy, this kind of right is not a right of common. A right of common is a right to take something from the land of another in common with the landowner. If the landowner is excluded from the land, then a right of common is exceeded. The essence of a right of common was neatly summarised by Charles Elton in his Observations on the Bill for the Regulation and Improvement of Commons 1876 (p. 5):
  64. "Perhaps a commoner's interest may be most conveniently described as a right to take or his own use part of the produce of another man's land, the landowner being entitled to all that the commoner does not take."
  65. In Johnson v Barnes (1873) LR 8 CP 527 the Court of Exchequer Chamber considered the nature of a right to depasture cattle over Lammas lands in Colchester. The issue was whether the right had been released by the release of part of the land over which the right had been exercised. In the court below the argument turned on whether the right was a right of common appurtenant or a right of common in gross. However, as so often happens, the case changed on appeal. Kelly CB said:
  66. "It seems to me manifest that what the corporation have exercised from time immemorial is a right which, though frequently spoken of as a right of common, was, in fact, an exclusive right of pasturage."
  67. Martin B said:
  68. "If it was a right of common, then, according to the old rule which was the law as early as the time of Littleton, the release of a part of the land over which the right was exerciseable would extinguish the right, and Mr. Williams's contention would prevail. If it was not a right of common, but an exclusive right of pasturage, then it is admitted that his contention must fail. I am clearly of opinion, looking to the facts of this case, that this was an exclusive right of pasturage to which the corporation of Colchester was entitled over certain lands during a certain season of the year, though it has been miscalled a right of common. It might, perhaps, be called a right of common, as being exercised by the burgesses in common; but it seems to me that the right pointed to by all the facts as to the use and enjoyment is certainly not a right of common in the legal sense of the word, but a right of exclusive pasturage."
  69. It is for this reason that Ms Cox concedes that at common law the right created by the 1808 Act was not a right of common strictly so-called.
  70. One of the incidents of a right of sole vesture is that the person entitled to that right may maintain an action for trespass during the period for which the right is exercisable: Co Litt 4a; Earl of Lonsdale v Rigg (1856) 11 Ex 536.
  71. Sections 193 and 194 of the Law of Property Act 1925

  72. Section 193 (1) in its current form provides as follows:
  73. "(1) Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts, 1866 to 1898, or manorial waste, or a common, which is wholly or partly situated within an area which immediately before 1st April 1974 was a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:
    Provided that—
    (a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and
    (b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, for conserving flora, fauna or geological or physiographical features of the land, or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and
    (c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and
    (d) the rights of access shall cease to apply—
    (i) to any land over which the commonable rights are extinguished under any statutory provision;
    (ii) to any land over which the commonable rights are otherwise extinguished if the council of the county, county borough or metropolitan district . . . in which the land is situated by resolution assent to its exclusion from the operation of this section, and the resolution is approved by the Minister."
  74. Section 194 provides as follows:
  75. "(1) The erection of any building or fence, or the construction of any other work, whereby access to land to which this section applies is prevented or impeded, shall not be lawful unless the consent of the Minister thereto is obtained, and in giving or withholding his consent the Minister shall have regard to the same considerations and shall, if necessary, hold the same inquiries as are directed by the Commons Act 1876 to be taken into consideration and held by the Minister before forming an opinion whether an application under the Inclosure Acts 1845 to 1882 shall be acceded to or not.
    (2) Where any building or fence is erected, or any other work constructed without such consent as is required by this section, the county court within whose jurisdiction the land is situated, shall, on an application being made by the council of any county or county borough . . . or district concerned, or by the lord of the manor or any other person interested in the common, have power to make an order for the removal of the work, and the restoration of the land to the condition in which it was before the work was erected or constructed, but any such order shall be subject to the like appeal as an order made under section thirty of the Commons Act 1876.
    (3) This section applies to any land which at the commencement of this Act is subject to rights of common:
    Provided that this section shall cease to apply—
    (a) to any land over which the rights of common are extinguished under any statutory provision;
    (b) to any land over which the rights of common are otherwise extinguished, if the council of the county, county borough or metropolitan district . . . in which the land is situated by resolution assent to its exclusion from the operation of this section and the resolution is approved by the Minister.
    (4) This section does not apply to any building or fence erected or work constructed if specially authorised by Act of Parliament, or in pursuance of an Act of Parliament or Order having the force of an Act, or if lawfully erected or constructed in connexion with the taking or working of minerals in or under any land to which the section is otherwise applicable, or to any electronic communications apparatus installed for the purposes of an electronic communications code network."
  76. Sections 193 and 194 were not part of Sir Benjamin Cherry's original scheme for the 1925 property legislation. They were inserted by amendment as the Law of Property Act 1922 was making its way through the House of Lords. They have their origins in an agreement reached between the Land Union (representing landowners) and the Commons Preservation Society. This may explain the lack of precision in the language of these sections compared with the quality of draftsmanship elsewhere in the Act. Section 194 was repealed, as regards England, with effect from 1 October 2007 and was replaced by sections 38 to 44 of the Commons Act 2006. But that does not affect this case.
  77. The principal question of interpretation is whether these sections apply only to land over which rights of common, in the strict sense, are exercisable. To answer this question it is, I think, necessary to backtrack a little; in order to see what was the legal usage of terms like "common", "rights of common" and "commonable rights" at the time when these sections were enacted.
  78. I have already noted that at first instance in Johnson v Barnes (1871-72) LR 7 CP 592 the argument turned entirely on whether the right of common was a right appurtenant or a right in gross. That it was a right of common was not in issue. On appeal Blackburn J remarked both on that and on the earlier case of R v Churchill:
  79. "It is worthy of notice that Littledale J, in his judgment, speaks of the right as a right of common, and so also Willes J, in the Court below, spoke of this right as a right of common. With all respect to two judges so eminently learned in matters of ancient law, I should say the language they used was not strictly accurate in this respect."
  80. So even judges eminently learned in matters of ancient law referred to a right of sole pasturage as a right of common. In the same case Kelly CB went as far as to say that such a right was "frequently spoken of as a right of common." In Mr Elton's treatise on Commons (1868) the author said (p. 27):
  81. "… there are other rights of pasture on commonable lands which resemble common of pasture, but are in reality of a different nature, being exercised by persons in whom the whole ownership of the herbage is vested, they being rather tenants in common than commoners."
  82. The point about this extract is that the author sees no solecism in referring to a right of sole vesture being exercised on "commonable lands". He added that the Inclosure Act 1845 was intended to apply to all rights which could impede the free cultivation of the soil and that therefore:
  83. "… other lands were included in the same list which are not subject to common of pasture, though popularly described as "commonable"."
  84. In 1896 Sir Robert Hunter wrote a treatise on the Preservation of Open Spaces. He said (p. 61):
  85. "But there may be rights over a common which, without giving an interest in the soil, exclude the owner of the soil from all enjoyment of some particular product of the common, and are, therefore, not in strictness rights of common, though for practical purposes they are of that nature."
  86. This extract shows two things: first that the land over which a right of sole vesture is exercisable may properly be described as a "common"; and second that a right of sole vesture has, for practical purposes, the same nature as a right of common.
  87. It seems to me, therefore, that at about the time that the 1925 property legislation was being passed there was a looseness of terminology about commons, rights of common, and commonable lands. A right of sole pasturage was "frequently" spoken of as a right of common; and land over which such a right was exercisable was popularly described as "commonable". It is against that background that I turn to construe sections 193 and 194.
  88. Section 193 (1) applies to land which is variously described. Parsing the sub-section in the way in which I think it should be parsed it applies to:
  89. i) any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts, 1866 to 1898;

    ii) manorial waste which is wholly or partly situated within a borough or urban district;

    iii) a common which is wholly or partly situated within a borough or urban district;

    iv) any land which at the commencement of the Act was subject to rights of common, and to which the section is made to apply.

  90. The first species of land is a metropolitan common. That is the subject of a statutory definition. The definition is found in section 4 of the Metropolitan Commons Act 1866 which says that a metropolitan common is any common the whole or any part of which is in the Metropolitan Police District. That definition in turn takes one back to the way in which "common" is defined for the purpose of that Act. Section 3 of the Act says:
  91. "The term "common" means land subject at the passing of this Act to any right of common, and any land subject to be included under the provisions of the Inclosure Act 1845"
  92. Mr Ainger says (rightly in my judgment) that the word "included" is a misprint for "inclosed". The Lexis website thinks so too. This definition also requires elucidation because it takes the reader back to the Inclosure Act 1845. Section 11 of that Act is headed "Descriptions of land subject to be inclosed under this Act." It provides, so far as material:
  93. "All such lands as are herein-after mentioned, (that is to say,) all lands subject to any rights of common whatsoever, and whether such rights may be exercised or enjoyed at all times, or may be exercised or enjoyed only during limited times, seasons, or periods, …all land held, occupied, or used in common, either at all times or during any time or season, or periodically, and either for all purposes or for any limited purpose…; all land in which the property or right of or to the vesture or herbage, or any part thereof, during the whole or any part of the year, or the property or right of or to the wood or under-wood growing and to grow thereon, is separated from the property of the soil;… shall be land subject to be inclosed under this Act."
  94. Plainly, therefore, land subject to a right of sole vesture or herbage was, in principle, subject to be inclosed under the Act. If land subject to be inclosed under the 1845 Act was within the Metropolitan Police District it was a metropolitan common; and thus within section 193.
  95. In principle, therefore, land like Severn Ham was subject to inclosure under the 1845 Act. I say "in principle" because Mr Ainger submitted that the 1845 Act did not apply to Severn Ham because it had already been inclosed by the 1808 private Act.
  96. I do not accept this submission. In the first place, as Ms Cox pointed out, Severn Ham was not in fact inclosed by the 1808 Act. Indeed the preamble to the Act expressly stated that Severn Ham was not to be inclosed. So Mr Ainger's submission fails on the facts. Second, I do not consider that the fact that land had previously been inclosed of itself meant that the land did not fall within the ambit of the 1845 Act. There are indications in the 1845 Act (mostly now repealed) to the contrary. Section 86 of the Act enabled a commissioner, with the consent of those interested, to declare old inclosures to be allottable under the Act. Section 115 gave a commissioner power to alter awards that had already been made under private Acts. Section 142 gave a commissioner power to remedy defects in awards made under private Acts; and section 143 gave a commissioner power to revive powers under private Acts that had not been exercised. Consequently, in my judgment the mere fact that land had been previously dealt with under a private Act did not remove it from the ambit of the 1845 Act.
  97. If, therefore, Severn Ham had been within the Metropolitan Police District, it would have been a metropolitan common. Of course it was not; so the inquiry must proceed to the next stage.
  98. The next stage is to consider the two expressions "common" and "land subject to rights of common". Neither is the subject of express definition. Mr Ainger argued, very plausibly in connection with a slightly different point, that where an Act of Parliament uses two different expressions in the same section they are likely to mean different things. I approach these two phrases, therefore, on the basis that they are likely to mean different things. Assuming that "land subject to rights of common" means land over which rights of common in the strict sense are exercisable, the natural inference must be that a "common" (tout court) must include other land. We have already seen that contemporaneous legal usage was able to describe land over which a right of sole vesture or herbage was exercisable as a "common" or "commonable land". So the use of the word "common" in the context of section 193 is likely to include such land. That likelihood is increased if one considers Parliament's purpose in enacting section 193. That purpose was, in my judgment, the promotion of access to certain open spaces. It is clear that, so far as Londoners were concerned, the open spaces in question included land subject to a right of sole vesture. It would be irrational to conclude that Parliament intended to discriminate between the citizens of London and the citizens of, say, Manchester or Birmingham (or, for that matter, Tewkesbury) who would have had equal benefit from access to similar open spaces. So a consideration of Parliament's purpose, as well as the textual difference between the two phrases supports the interpretation that a "common" includes land subject to a right of sole vesture. Moreover, as we have seen the textbook writers considered that a right of sole vesture was, for practical purposes, of the same nature as a right of common. Parliament legislates for practical purposes, not for fun. So that, too, supports the conclusion that land burdened by a right of sole vesture fell within section 193 (1). This interpretation is also supported by Gadsden on Commons para 11.11. I conclude therefore that Severn Ham fell within section 193 of the Law of Property Act 1925.
  99. It remains to consider the meaning of the phrase "commonable rights" which appears in proviso (b) and proviso (d) to section 193 (1). Proviso (d) in particular says that if "commonable rights" are extinguished under a statutory provision then the public rights of access cease. Mr Ainger submitted that "commonable rights" were rights of common (strictly so-called) but exercisable for a limited period of the year. I do not agree. It is plain that section 193 (1) applies to land subject to a right of sole vesture, at least in the case of a metropolitan common. One would expect that if that right were extinguished, thus leaving no right exercisable over the land, public rights of access to the land would also cease. Otherwise there does not seem to be any mechanism by which public rights of access could be expunged. We have seen too that a right of sole vesture is described in legal texts as a "commonable right"; and even by some very learned judges as a right of common. In my judgment this phrase should be construed symmetrically with the kind of land that falls within section 193 (1). The looseness of the language ("commonable rights" as opposed to "rights of common") also encourages a broader construction. In addition if the phrase is not construed in this way impractical results follow. For instance if "commonable rights" means no more than "rights of common" in the strict sense then there is no power under proviso (b) to protect those who exercise rights of sole vesture or herbage, even though there would be power to protect those exercising lesser rights. If Mr Ainger's construction is correct, then even someone who has a right of common in the strict sense exercisable throughout the year would not be capable of being protected. Nor would there be any power to protect objects of historical interest, simply because of the happenstance that the right enjoyed was one of sole vesture rather than a true right of common; or even (if Mr Ainger is correct) a true right of common exercisable throughout the year. That is an improbable intention to impute to Parliament. In my judgment "commonable rights" means whatever rights were the cause of the land falling within section 193 in the first place. This interpretation is also supported by Gadsden on Commons para 11.11.
  100. I turn next to section 194, which contains its own puzzles. The first is to consider the land to which the section applies. Whereas section 193 applied to four categories of land, section 194 (3) says that that section applies to "any land which, at the commencement of this Act, is subject to rights of common". Thus the express references in section 193 to metropolitan commons, manorial waste and urban commons are not repeated in section 194. Nor does it use the looser phrase "commonable rights". Why Parliament made this distinction is, to my mind, impossible to say. I would have expected sections 193 and 194 to have applied to the same categories of land; but it seems to me that the difference in language between the two does not allow that conclusion. In my judgment section 194 applies only to land subject to rights of common properly so-called. It does not, therefore, apply to Severn Ham. Mr Ainger did not argue that it did.
  101. Next is the effect of consent under section 194. The section does not say in terms that the effect of ministerial consent under the section operates to suspend or extinguish pro tanto any rights of common. Is this effect necessarily to be implied? Gadsden on Commons is unequivocal that ministerial consent has no effect on the rights of the commoners (§ 9.35) but gives no authority in support of this view.
  102. Section 194 (1) says that in considering whether or not to give consent the minister must "have regard to the same considerations … as are directed by the Commons Act 1876 to be taken into consideration and held by the Minister before forming an opinion whether an application under the Inclosure Acts 1845 to 1882 shall be acceded to or not." What these considerations are is spelled out by the preamble to the Commons Act 1876:
  103. "WHEREAS by the Inclosure Acts, 1845 to 1868, upon the application and with the consent of such of the persons interested in any common as in the said Acts in that behalf specified, the Inclosure Commissioners are empowered by provisional order under their seal to authorise the inclosure of such common, provided such inclosure is made on such terms and conditions as may appear to the Commissioners to be proper for the protection of any public interests, and provided also that the Commissioners are of opinion that such inclosure would be expedient, having regard as well to the health, comfort, and convenience of the inhabitants of any cities, towns, villages, or populous places in or near any parish in which the land proposed to be inclosed, or any part thereof, may be situate (hereinafter included under the expression the benefit of the neighbourhood), as to the advantage of the persons interested in the common to which such application relates (hereinafter included under the expression private interests); but such provisional order is of no validity until and unless the Commissioners have in a report to be laid before Parliament certified that in their opinion the inclosure of such common, if made on the terms and conditions in their provisional order expressed, would be expedient, having regard to the benefit of the neighbourhood as well as to such private interests as aforesaid, nor until and unless an Act of Parliament has been passed confirming such order and affirming such certificate as aforesaid, and directing that the proposed inclosure of the common should be proceeded with accordingly."
  104. The first thing to notice about this is that the Commissioners were required to balance public and private interests. The private interests included the interests of "persons interested in the common". Those persons would include both commoners and the owner of the soil. So the commoners' interests would be taken into account in making the decision. The second thing to notice is that the consideration of these questions leads to a decision whether or not to permit inclosure; and inclosure automatically extinguishes rights of common. Indeed the purpose of the decision is repeated in section 194 itself. Thus in reaching a decision under the Inclosure Acts, the Commissioners would have balanced all private interests as well as the public benefit and if they decided that inclosure should be permitted as a result of having conducted that balance, then rights of common would be extinguished. Why would Parliament have required the Minister to have regard to the same considerations if the end result was radically different? If the commoners rights were to be unaffected by ministerial consent, why was the Minister required to have regard to those rights? Similarly, if the rights of the public were to be unaffected by the grant of consent, why was the Minister required to have regard to public benefit? In addition, the Minister is empowered to give consent to the erection of a building. It makes little sense to have an elaborate procedure for obtaining consent to the erection of a building if despite that consent the public still have rights of access over it, or commoners may still exercise their rights of common over it. Suppose that a local authority applies for and obtains the minister's consent to erect a cafeteria or a greenhouse on a common. Can it really be supposed that Parliament intended a commoner to be entitled to bring his sheep into the cafeteria or to graze his cow on bedding plants in the greenhouse? In my judgment the answer must be "no". In my judgment it is necessarily implicit in section 194 that the grant of ministerial consent extinguishes or suspends rights of common to the extent that they would be inconsistent with that which the Minister has consented to. That extinguishment takes place under a statutory provision; and consequently also extinguishes public rights of access under section 193 to the same extent. If, therefore, the Minister consents to a permanent inclosure (e.g. by consenting to the erection of a building) rights of common and public access cease to be exercisable as regards that building.
  105. The last point on these sections that I should make is this. At common law there are ways in which rights of common may be extinguished. However, to the extent that sections 193 and 194 apply to any land, the mere extinguishment at common law of rights of common will not lead to the disapplication of those sections. Section 193 will cease to apply if commonable rights are extinguished "under any statutory provision". This plainly excludes extinguishment at common law. Extinguishment at common law can lead to the disapplication of section 193; but only if the relevant local authority resolves to exclude the land in question, and the resolution is approved by the Minister. The same two routes to disapplication also apply to section 194. Nevertheless it seems to me that if rights of common (or analogous rights) had been validly extinguished before 1 January 1926 (when sections 193 and 194 came into effect) then neither of those sections would have applied to land which did once answer the statutory description but no longer did when the sections came into effect. It is, therefore, necessary to consider two further questions:
  106. i) Was land which now forms part of ADM's registered title ever subject to the right of sole vesture created by the 1808 Act; and, if so,

    ii) Was that right validly extinguished at some time before 1 January 1926?

    Did the right of sole vesture apply to ADM's land?

  107. The 1808 Act did not identify the extent of Severn Ham in any detail. It simply referred to the "Meadow called Severn Ham". From this description I deduce two things: first that the right created by the 1808 Act was only intended to apply to land that could fairly have been called "meadow"; and second that the meadow in question must have been called "Severn Ham". Equally the fact that the right created by the 1808 Act was a right to graze must mean that it was only intended to apply to land, which at the date of the Act, was capable of being used for grazing.
  108. We have seen that the Quay itself existed in 1407 and was newly paved in 1583. It is marked on maps as the Quay. It is a fair inference, therefore, that it was not called Severn Ham and that it was not capable of being grazed. I am satisfied that the right created by the 1808 Act never applied to this land. The Quay (or Key) bridge was already "very ancient" in 1786; and the 1786 Act required its approaches to be maintained for 100 yards each side of the bridge. I am satisfied that this land also was never subject to the right created by the 1808 Act. The last piece of evidence is the plan that accompanied the inclosure award made under the 1808 Act itself. This shows the Quay; and to the south and east of the Quay a series of buildings with appurtenant yards. Pecked lines on the plan appear to me to show fences or other enclosures. Buildings with enclosed yards are also shown on a plan in Mr Dyde's book (1798). These buildings are the old flour mill which subsequently became Healings Mill. I am satisfied that that this land also was never subject to the right created by the 1808 Act.
  109. So far as the remainder of the land now comprised in ADM's registered title is concerned, I am unable to conclude that the right created by the 1808 Act never applied to it. It is therefore necessary to consider whether any such right has been extinguished.
  110. How rights of common may be extinguished

  111. There are a number of ways in which a right of common may be extinguished at common law. There are three that are relevant for present purposes. First, a right of common may be extinguished by unity of ownership. If the owner of the soil and the owner of the right are one and the same, the right of common can no longer exist, because one cannot have a right over one's own land. (There are qualifications to this general proposition, but they do not matter for present purposes). The second is by release. A release may be express or implied. In the case of an implied release, whether the implication should be made is a question of fact. The mere fact that a right has not been exercised for many years is not enough. In Tehidy Minerals Ltd v Norman [1971] 2 QB 528, 553, Buckley LJ said:
  112. "Abandonment of an easement or of a profit à prendre can only, we think, be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else."
  113. This was followed in Re Yateley Common [1977] 1 WLR 840 where rights of common were held to exist in land even though the land had been requisitioned for use as an airfield and had been used for that purpose for over thirty years. In Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259, commenting on Buckley LJ's dictum, Stuart-Smith LJ said:
  114. "There is, in my judgment, a further reason why the court should not lightly infer an intention to abandon rights for all time from acquiescence by the owner of the dominant tenement in acts of the servient owner, which make it difficult or impossible to exercise those rights at a time when the owner of the dominant tenement does not have any need to do so. It is this. As a matter of good neighbourliness, an owner of land may well permit his neighbour to make use of the servient tenement for the time being. The dominant owner does not have any present need to exercise his rights and it is a convenience to the servient owner to store materials or vehicles, to erect machinery or structures for his business. It would, I think, be undesirable, if this generous and good neighbourly conduct could not be indulged in for fear of losing for all-time rights, which at that moment the dominant owner has no need or wish to exercise. No doubt, it must be a question of degree. The erection of a house or other substantial and permanent building, which completely defeats the right if acquiesced in by the dominant owner, would be taken as a clear indication that the right was being abandoned. But if the obstruction can be removed, albeit at some inconvenience and expense to the servient owner, the court should, in my judgment, be slow to infer that acquiescence in its existence is sufficient to amount to evidence of intention to abandon for all time the right."
  115. In my judgment the nature of the right which is said to have been impliedly released also has a significant bearing on what facts will justify the inference that the right has been released. In the present case the right created by the 1808 Act was a possessory right, in the sense that it carried with it the right to maintain an action in trespass. A trespass is actionable per se, without the need to prove damage. Interference with an easement on the other hand amounts to a nuisance; and that is a cause of action where damage is a necessary ingredient. Although a right of sole vesture is apparently classified as an incorporeal right despite its possessory character (and hence is incapable of being barred under the Limitation Acts which do not apply to incorporeal hereditaments), nevertheless it seems to me that abandonment of a possessory right may be more readily inferred from acquiescence in acts inconsistent with that right than might be the case where a truly incorporeal right is concerned. It is also to be borne in mind that under the 1808 Act it was plainly contemplated that the trustees would let the after math year by year, or even on lease for up to 21 years.
  116. The third way in which land may cease to be subject to rights of common is by approvement. Approvement is a form of inclosure, which Bayley J decribed in Arlett v Ellis (1827) 7 B & C 346, 369 as follows:
  117. "The lord has a right to approve, not as lord, but as owner of the soil. Glover v. Lane (3 T. R. 445) shews that the owner of the soil, whether lord or not, may make such an approvement. It seems to me that the lord's right is this: he may approve provided he leave sufficiency of common of pasturage for all the cattle which are entitled to feed upon it. The common may originally have been destined for a definite number of cattle, or for all cattle levant and couchant upon certain lands. Many of those rights may be extinguished, or the common itself may produce so much more herbage, that a smaller portion of that common may be sufficient for depasturing the cattle of the persons entitled, than when it was originally destined to that purpose. Now, whenever that is the case, I think that the lord has a right to inclose; but in order to justify making the inclosure, it is incumbent upon him or his grantee, when the right to inclose is questioned, to shew that there is sufficiency of common left."
  118. However, there are statutory restrictions on the right of approvement. Under section 31 of the Commons Act 1876 three months notice of an intention to approve must be given; and under section 1 of the Law of Commons Amendment Act 1893 no approvement is valid without the consent of the Secretary of State.
  119. As I have said, the extinguishment of rights at common law after 1925 would not expunge public rights of access. So the question under this head is whether the right created by the 1808 Act was extinguished over ADM's land before 1926.
  120. Were rights extinguished over ADM's land?

  121. I have already referred to the 1844 conveyance by which the Birmingham & Gloucester Railway Company acquired the land on which the railway was subsequently built. The construction of a railway authorised by Act of Parliament is, in my judgment, the construction of a permanent feature which is completely inconsistent with a right to graze or mow. The building of the railway evoked no protest from the trustees; and they clearly acquiesced in both the construction of the railway and its subsequent use for some 75 years before 1926. In my judgment on those facts I am entitled to and do infer that any right created by the 1808 Act over that land was released at some time before 1926. Consequently section 193 of the Law of Property Act 1925 never applied to it. This is the land that was subsequently conveyed to ADM by the 1957 conveyance.
  122. Although not conveyed by the 1844 conveyance, the plan attached to that conveyance shows some of the immediately surrounding land. Immediately to the south of the Quay is an enclosed rickyard (labelled Rickyard 3 on the plan); and also a row of buildings including the Severn Trow, which was a pub. These buildings are also shown on the plans deposited in 1836 in connection with the proposed railway; and they are shown in the accompanying books of reference as a collection of warehouses, counting houses, stables and other buildings. A directory of tradesmen in Gloucestershire dating from the 1830s identifies two pubs on the Quay: the Star and the Severn Trow. If and in so far as the site of these buildings was ever subject to the right created by the 1808 Act it is plain that these buildings have existed since at least 1836. There is no evidence of any protest by the trustees. In my judgment on those facts I am entitled to and do infer that any right created by the 1808 Act over that land was released at some time before 1926. Consequently section 193 of the Law of Property Act 1925 never applied to it.
  123. The next parcel of land is that conveyed by the conveyance of 1938. This land is in fact the same rickyard that was shown in the plan attached to the 1844 conveyance (although not conveyed under it). In the 1938 conveyance it was described as being occupied by a Mrs Walkley. If I am right in inferring that any right over this land had been impliedly released before 1926, then section 193 never applied to it. The conveying parties were the borough council and nine of the trustees. Mr Ainger pointed out that although the 1808 Act did not confer upon the trustees any power of sale, they acquired such a power as a result of the transitional provisions of the Law of Property Act 1925. I am therefore satisfied that they had power to enter into the conveyance. The position, therefore, is that both the land and the right in the land became vested in S Healing & Sons Ltd as a result of that conveyance. It follows that if there was any subsisting right of sole vesture in that land then by reason of unity of ownership those rights were extinguished. That of itself would not extinguish public rights of access if (contrary to my view) they still subsisted. But having extinguished the right of sole vesture by unity of ownership, public rights of access could be extinguished by local authority resolution approved by the Minister.
  124. Mr Ainger suggested that because the trustees' power of sale was a statutory power of sale created by the transitional provisions of the Law of Property Act 1925, the extinguishment of the right of sole vesture was an extinguishment "under [a] statutory provision", thus bringing section 193 (1) proviso (d) into play. By this route, he said, public rights of access were also extinguished. I reject this submission. It is true that the Law of Property Act gave the trustees a power of sale where they had none before. But in my judgment what caused the extinguishment of the right was neither the existence of the power nor, indeed, the exercise of it; but the fact that the right and the soil became vested in the same person. It was that combination of conveyances by the borough council and the trustees respectively which extinguished the rights. If Mr Ainger were right it would mean that any conveyance by a body whose power of sale was statutory could potentially lead to the extinguishment not only of rights of common but also of public access rights. I do not consider that this can have been Parliament's intention.
  125. Mr Ainger did also suggest that the effect of the 1938 conveyance was to remove the land conveyed by it from any common as a result of custom (or, possibly) approvement. I rather doubt that any custom has been established. In addition inclosure by custom required the consent of the homage (i.e. those persons entitled to attend the manorial court); and there is no evidence of that. So far as approvement is concerned, it is true that at the date of the conveyance the borough council was the lord of the manor, and one might infer from the lack of any protest over the ensuing 70 years that there remained enough land to satisfy the grazing needs of those entitled to the right. But the formalities required by section 31 of the Commons Act 1876 were not followed; nor was the consent of the Secretary of State obtained. Moreover, since any approvement resulting from the 1938 conveyance would have post-dated 1926 I do not see how it could have extinguished accrued public rights of access.
  126. As I have said, the 1949 conveyance conveyed part of OS 249 (wrongly identified in the conveyance itself as part of OS 261). This parcel of land was, at the time of the conveyance, part of what has been called the eastern rickyard. It also contained an air raid shelter, presumably erected at some time during the Second World War. The eastern rickyard, according to the Ordnance map, has been enclosed since at least 1886. It is shown as enclosed on the edition of that year; as well as the editions of 1902 and 1923. By the beginning of 1926 it had, therefore, been enclosed for at least forty years. There is no evidence of any protest by the trustees. In my judgment on those facts I am entitled to and do infer that any right created by the 1808 Act over that land was released at some time before 1926. Consequently section 193 of the Law of Property Act 1925 never applied to it.
  127. I do not feel able to draw any further inferences of implied release before 1926. I mention in particular what has been called the western rickyard. This is shown as an enclosure on an undated plan whose purpose was to show land to which the Midland Railway laid claim. The Midland Railway was created by the Midland Railway Consolidation Act 1844; and it ceased to exist on further amalgamations in 1922. The plan must have been prepared between those dates, but further dating is impossible. The enclosure is shown on the 1923 Ordnance map. However it is not shown on either the 1886 or the 1902 editions of the Ordnance map. The obvious inference therefore is that it was enclosed at some time between 1902 and 1923. It might, therefore, have been enclosed as little as three years before the coming into force of section 193. That is too short a period from which to infer an implied release.
  128. I have not been asked to make declarations specific to the land that ADM acquired under the 1986 conveyance.
  129. Result

  130. I am not prepared to make declarations relating to the Town Council's land. I refuse the declaration claimed in paragraph 1 of the prayer for relief in so far as it relates to ADM's land. I am prepared to make declarations as regards those parts of ADM's land to which section 193 does not apply. I will ask counsel to draw a minute of order to give effect to my decision.

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