Besley v John

LORD JUSTICE BUXTON: This is an appeal from the order of His Honour Judge Moseley QC, sitting in the Merthyr Tydfil County Court. It concerns competing claims in relation to an area of common land. For reasons which will become apparent the case in one respect has taken a slightly unusual course before this court which is going to require - reluctantly but, we think, unavoidably - further submissions from the parties when they have had the benefit of this court's judgment. At the moment we envisage that those submissions should be in writing; we will say more about that at the appropriate time in the judgment.

Vaynor Common in Merthyr Tydfil covers some 3,700 acres. The respondent is the freehold owner of a golf course on part of the common. I shall refer to that body simply as the golf club. In 1994 the golf club extended the course from what had previously been 9 then 11 holes to 18 holes, necessarily therefore covering a further 14 acres of additional mown areas of the common, mown to provide greens, tees and fairways.

Mr John, the appellant, owns two farms adjacent to the common. He has grazing rights on the common which are registered under the Commons Registration Act 1965. We have not seen the entry in the register, but can take it from Mr John's witness statement, where he said:

We are not told, because nobody knows, what was the ultimate origin of these rights of common. They were presumably originally acquired either by express grant or by custom or by prescription in favour of the owners of the farms. Their status and extent is now contained and only contained within the Commons Registration Act, ("the 1965 Act"). In particular, Section 15 of that Act provides for the quantification of the number of beasts in relation to which the right can be exercised, as set out in Mr John's registration. Section 15 of the Act makes reference to a "right to graze" without further elaboration or explanation. The general understanding of the nature of that right is set out in Halsbury's Laws, Vol 6, at Section 652. Drawing on ancient and uncontested authority, the learned editor states:

Mr John's flock is "hefted", an expression that indicates in general terms that the sheep are kept, by a combination of training and upbringing, on a particular part of the common. Mr John's evidence was that at least half of the area used by his sheep was on land owned by the golf course. The choice that he has made to deploy his sheep in that way does not, however, affect the nature of his rights. The judge said in paragraph 4 of his judgment:

The common therefore accommodates both the golf course club and Mr John's activities as a sheep owner. Unfortunately however these two seemingly innocent enterprises in this rural setting have not succeeded in living peaceably with each other. The golf course complains of excessive and unreasonable use by Mr John of his rights and extension of those rights beyond that which the law properly provides, with physical damage caused to the golf course by the vehicles that Mr John uses to tend his sheep. In particular, the golf club assert that (1) Mr John has no right to bring feed on to the land for sheep in addition to what they can take from the grass already grown; (2) therefore vehicles cannot be driven on to the land for that purpose, and not at all except in a case of necessity connected with the welfare of a particular animal; (3) any right involved in the common pasture must be exercised reasonably and so as not to interfere with the golf club's enjoyment of the land.

As to physical damage, the judge noted that the land had contained hard tracks on which a vehicle could be driven without causing damage. He found - and I do not understand it to be disputed - that Mr John had gone further than that. He said in paragraphs 8 and 9 of his judgment:

Mr John's response to these complaints was to assert a right, contingent on his right of pasture, to drive on to the land to bring feed to his sheep. The matter was put thus in paragraphs 3 and 5 of the defence:

Although paragraph 3 asserts a more general right to drive on to the land in order to attend to the welfare of the sheep, that does not seem to have been at the forefront of the case as it was originally pleaded. That now may be, as Mr Lloyd for the golf club told us, the main bone of contention, but the dispute that his clients originally saw themselves as having with Mr John was in relation to delivery of feed. However, the "welfare" point had certainly entered the case by the time the judge came to give judgment, and no objection was taken to the point being asserted in grounds 6 and 7 of the notice of appeal at page 10 of our bundle:

Mr John originally asserted also that he acquired a right to bring feed on to the common by means of easement or prescription. The judge found against that claim on the merits and, wisely, there is no appeal.

Mr John also counterclaimed. He said that the expansion of the golf course by the creation of the new holes in 1994, and thus the inevitable increase in the area that was mown, had unreasonably interfered with his right to graze his sheep. The matter was pleaded thus in paragraph 15 of the counterclaim:

The judge had to determine the parties' rights, and sought a sensible accommodation between them. He was conscious, as this court is conscious, that a dispute of this nature can only be satisfactorily resolved by a clear determination on the part of the court as to what respective actions are permitted in the case of each party. In summary, he held as follows. First, Mr John's right to graze sheep was just that, and did not extend to bringing on to the land extra feed. Second, any use of a motor vehicle could only be justified in a case of necessity, and not for what I would term general purposes of shepherding. The fact that it was more convenient to use a vehicle was irrelevant. Third, the extension of the golf course and the consequent mowing of the larger area of the common did not unreasonably interfere with Mr John's rights. The judge accordingly dismissed the counterclaim. After counsel had considered the terms of the judgment a declaration was made in terms that reflected the limited right of common that the judge had recognised. The declaration was in these terms (page 28 of our bundle):

I turn to the issues in the appeal. The first attack on the judge's conclusions is as to his treatment of the right to graze. That arises in two ways. First, the right to bring on to the land additional or ancillary feed; and, secondly, the right to perform general shepherding functions, as I will call them, by vehicle rather than on foot. The complaint about the judge's declaration that there was no right to bring feed on to the claimants' land was put thus in paragraph 1 of the grounds of appeal:

It is therefore necessary in all such cases to look at the nature of the right or grant which is asserted. If we go to Antrim, we find at page 424 an account of what the grant had been. A predecessor in title of the plaintiff Lord Antrim had made what appears to have been a lease of certain lands:

The question was how that right should be exercised in modern circumstances. Mr Justice O'Brien, having held that where a right to carry away is not expressly reserved it must be inferred, said at page 429:

But so far as the claimed right to feed is concerned, the approach in Antrim is not available. That is because - as the judge said in paragraph 13 of his judgment - the right to graze is only to take what of the grass the sheep can eat, and no more. That seems to me to be the end of the point so far as bringing feed on to the land is concerned. The right is - and is only - for the sheep to graze. The right is not to use the common land for all the functions and services that might be attached to the keeping of sheep; or, in other words, to treat the common simply as an extension of Mr John's farm. If the latter were to be the right, it would not be expressed as a right to graze but as an easement.

For that reason the evidence before the judge as to what are modern practices and expectations in the keeping of sheep - and in particular, as Mr John asserted, that he would be open to criticism if he did not provide feed - is not in point.

Taking away the product of the mine is reasonably necessary to enjoy the act of easement granted, that is to say the right to mine, as Antrim provided. Otherwise, you would simply have to leave the product at the top of the mine. But, by contrast, the provision of extra feed cannot be regarded as reasonably necessary for the grazing of the sheep. It is, indeed, if anything, contradictory of such right, because when the sheep are eating the provided feed they are not doing what the right of common provides, and all that it provides, eating the grass. If that means that the common is not usable by the sheep for a period of the year, that only demonstrates the limited nature of a right of pasturage. If the pasture available is by nature, rather than by interference, insufficient, then it is not open to the commoner to supplement that limitation by a different activity on the common land.

The judge was therefore right to hold that it was not an incident of right of pasture to bring additional feed on to the land over which the right existed.

I turn to the more elusive question of the right to drive on to the land for what might be called general shepherding purposes. Mr John explained in paragraph 8 of his witness statement how he had to check on the health of the sheep every day, and to look for and if necessary bring home any sheep that were ill. Mr John in his evidence was particularly directing himself to the matter of bringing in of feed, but another witness, Mr Jones, also a commoner, gave evidence as follows at paragraph 9 of his witness statement:

The parties in their pleading on this matter and in their argument before the judge were largely influenced by the judgment of Mr Justice Buckley in White v Taylor 1 Ch [1969] 160. There the claimants had what were called "sheep rights" on a portion of land known as Martin Down. These rights were created, as the judge found, by a conveyance in 1920, and not in fact by any right of common exercisable against the Lord of the Manor. Nonetheless, the rights were effectively treated as rights of common. The question arose as to whether that contained a right to carry water on to land to water the sheep. Mr Justice Buckley said at page 198 B:

The judge in our case drew from Mr Justice Buckley's remarks that the entry on to the Down for the purposes of attending to the welfare of the sheep was permissible, but use of the vehicle was only permitted where necessary. As we have seen, he was prepared to categorise as a case of necessity the removal of sick or injured animals or carcasses, functions that plainly could not be performed on foot. Any other use of a vehicle would, in Mr Justice Buckley's terms, be merely a convenience. The judge summarised his view in paragraph 39 of his judgment in the following terms:

The judge's approach to this part of the case seems to me not to be entirely correct. The issue at this stage of the case is not the issue that was ventilated in respect of the bringing on of feed, that is to say whether the function in question was an incident of the right of common at all. The question at this stage of the case is what is the reasonable and necessary mode of exercising what is an incident of the right of pasture, that is to say the right to attend to the welfare of sheep. That tending to the welfare of the animals is a necessary incident of the right of common is not challenged by the respondents, and is, in my view, a matter that does not admit of much argument. Certainly I am not prepared to say Mr Justice Buckley and the parties were wrong in recognising attention to the welfare of the sheep and what might be called general shepherding activities as an incident of a right to graze. So the question is whether, as the judge thought, it has to be exercised on foot except in extreme circumstances. While the extent of the right is to be determined at the date of the grant - or, in this case as I would think since the date of the grant is not known, the date of registration - that does not mean that the means of exercise of that right are fixed by the means customarily available at that earlier date. That that is not so is demonstrated by the quotations I have cited from Antrim: the

It seems to me that the judge did not address that issue save by suggesting that Mr John's argument involved an extension of his rights. As I have made plain, in contradistinction to the position in regard to the bringing on of feed, I do not agree. The question is the mode of exercise of rights rather than their extent. In the light of the evidence and, I am bound to say, of common sense, shepherding by vehicle over a large area seems, in the year 2003, to be prima facie a reasonable way to exercise a right to care for the welfare of sheep.

That right must however be exercised reasonably and with the minimum interference with the rights of the landowner. It is at this stage that we enter into the difficult area of the case. The judge did not have to deal with this in any detail, nor, in the event, did the parties. As we have seen, he took so limited a view of Mr John's rights as to lead to the very limited order that he made. But what the court now has to consider is what is the reasonable way of exercising Mr John's welfare rights which prima facie may be exercised by vehicle. There must be protected the interests of the landowner in not having his land interfered with or damaged more than is reasonably necessary. It is also highly desirable, particularly against the history of this case, that an order be drawn that so far as possible puts the parties in a position to know exactly what they may do and may not do, in the hope of avoiding further litigation on this subject.

Mr Lloyd told us that substantial assistance had been given in that respect by clarification of the position about feed. So be it, but the matter cannot be left there. I have had the benefit of discussing this aspect of the case with my Lord and I think he agrees with the approach I am about to suggest. I have endeavoured to set out what the law is on the subject and the limits that the parties must preserve. Tempting though it is for the court to draft an order for them, possibly with some brief comments by counsel, we do not think that would be a fair course in this case, granted that neither the parties nor their advisers have had occasion properly to consider this aspect of the case before. Therefore we think that the appropriate course would be for the parties, in the light of our observations in this judgment, to seek to agree an appropriate order that would meet the criteria that the court has set out.

It may help if we advance further considerations that the parties may wish to have in mind. First, there is reference in the judge's order to keeping "so far as possible" to the tracks and other paths on the course. We are concerned about that order, not because it is not sensible that the track should be used, but by the degree of latitude the phrase "so far as possible" may give. We hope it may be possible to agree a more detailed statement of the circumstances in which it is reasonably necessary to come off the tracks. Second, we think there should be, and it should be understood, that certain particularly vulnerable parts of the course should be visited by vehicle; we have in mind, in particular, the greens and tees should an emergency arise in those areas. We cannot see it would be unreasonable for them to be approached by foot. Third, we heard submissions, but not in the light of evidence, as to the mode of shepherding or collecting the sheep, as opposed to the mode of travelling to inspection of them. Mr Lloyd expressed concern at what we understood to be a practice of using a vehicle simply for rounding up sheep in the way that previously was, and often still is, done by dogs. As presently advised, and subject to further submissions, it is my view that it would not be a reasonable exercise of Mr John's rights to use vehicles in that way. His rights are to graze beasts, and to care for the welfare of those beasts. It does not seem to follow from those rights that he has further rights with regard to the movement of shepherding and so on of the beasts. That may be necessary in order to get them on and off, but, as at present advised, the use of vehicles in that respect should be limited.

In the course of argument a draft was produced as to a scheme that might be introduced to protect everyone's interests. We encourage the parties to refer to that to see if agreement can be reached. Any agreed order must be in any event submitted to the court. It does not necessarily follow that what the parties agree will be thought appropriate by the court. If the parties are not able to agree in the light of the guidance we have sought to give they must make submissions in writing to this court supported by such limited written submissions as the parties think appropriate. Those must be exchanged between the parties. I would be minded to direct that the parties return, in writing, to the Registrar of this Court documents to be clearly marked for my attention no later than 28 days from today, that is 28 November. We hope that will enable this most unfortunate dispute to be resolved in a way that gives everyone a fair and proper interest in this land, and sets down limited rules that do not require further litigation.

I turn finally to the counterclaim which, as we assumed, was an allegation that the creation of new greens and fairways and the consequent mowing of the grass was an interference with the rights of Mr John and other commoners. The judge's findings in respect of that were set out in paragraphs 40 to 42 of the judgment in the following terms:

Mr John's case, at least as I now understand it, is not that the mowing interferes with his bringing on of the vehicles but that mowing interferes with what one might call the basic and unchallenged right of his sheep to eat the grass. Complaint is made that the judge should have concentrated on the "hefted" area occupied by Mr John's sheep. I disagree. As against the landowner, the rights of Mr John extend over the whole common. I have already quoted what the judge said about that in paragraph 4.

We were pressed with the decision of Mr Justice Blackburne (Vice-Chancellor of the County Palatine of Lancaster) in B & Q v Liverpool & Lancashire Properties Ltd [2001] 1 EGLR 93, and in particular that judge's adoption of the judgment of Mr Justice Scott in Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204. Those cases are not relevant here. B & Q was a case about a right of way where the mode of use of the whole way, that is to say elimination of the use of the whole way, was restricted by a change in the nature of the servient tenement. Here the "hefting" restriction was of Mr John's choice, not as against the landowner, but presumably as against other commoners.

Further, insofar as the general complaint of the commoners is concerned, this case is about Mr John's rights. He is not pursuing it on behalf of other commoners. However those considerations are irrelevant because the judge found in any event that the sheep could graze on the mown course.

It is complained that that finding did not give proper weight to some evidence that Mr John gave in cross-examination and also to his assertion - as that also of Mr Jones - that his right of common had been restricted. What Mr John was asked in cross-examination was whether it was the case that sheep graze on the mown area, and whether they liked it because it was sweet, green grass. Mr John replied at page 157 C:

Whether it is an advantage to have that particular grass is not the point. What Mr John must demonstrate is the ability of his sheep to eat the grass had been unreasonably restricted in the light of evidence that they did eat the grass.

In my judgment the judge was fully entitled to find - having heard that evidence and seen the photographs and evidence of sheep on the fairways - that the golf course was indeed usable for grazing and that the use had not been materially (that is the appropriate phrase) reduced.

Complaint is made that the judge drew on his own knowledge as a sheep farmer. It is clear from the structure of his judgment that he regarded that observation as only supplementary to the evidence he had actually seen and heard, and did not draw on his own knowledge for any other purpose. Also I am bound to say that the judge's findings seem to be to be a matter of common sense. By constructing the course, the land was turned from rough ground into mown short grass. I am not a sheep farmer, and I understand my Lord is in similar case, but one does in the course of life come across sheep from time to time, and I find it very difficult to accept that the judge was wrong in thinking that they were better off with short grass rather than the unmown common. But whatever my own view, the judge made his decision and it cannot be challenged.

Had I been in more doubt, I would nonetheless not have been willing to grant injunctive relief in this case. The evidence was that the injunction sought would prevent the use of the golf course at all. I do not think that would be a reasonable outcome, not least because of the state of the evidence.

I would therefore only allow the appeal to the limited extent set out in respect of the right to bring vehicles on to the land. I would invite the parties to consider, in the light of this judgment and any judgment my Lord may deliver, the terms of an order in that respect.

LORD JUSTICE LAWS: I agree that this appeal should be allowed to the limited extent and for the reasons given by my Lord. I agree also with the course of action proposed by him to be included in due course in an appropriate order in the light of this court's judgment.