Dance v Savery & Ors

This appeal concerns the interpretation and conclusiveness of entries relating to rights of common in a register of common land kept by a commons registration authority pursuant to the Commons Act 2006 (“the 2006 Act”).

The appellant, Semaj John Dance, who is the claimant in these proceedings, appeals the order of Kitchin J of 17 January 2011, by which it was declared that the right to graze 101 livestock units over Brent Moor Area A in the South Hams District of Devon, which appears as entry No. 108 in the register of common land Unit No. 161 (“CL 161”) maintained by Devon County Council (“the Council”), is not an independent right to graze such livestock over Brent Moor Area A alone, but is subject to the limitation that 101 livestock units is the maximum number that can be grazed at any one time over the whole of Brent Moor Area A and the neighbouring register units No. 162 of Dean Moor (“CL 162”) and No. 164 of the Forest of Dartmoor (“CL 164”).

The entry for Brent Moor Area A in CL 161 does not state that the right is “split” with CL 162 and CL 164. The Judge concluded, however, from Mr Dance’s applications under the Commons Registration Act 1965 (“the 1965 Act”) for registration of rights of common in respect of CL 161, CL 162 and CL 164 that Mr Dance understood his right to graze over all three register units was split between them and that Mr Dance made his application for registration in respect of CL 161 on that basis. Having regard to the related decisions of the Commons Commissioner, Mr A. Baden Fuller, the Judge was satisfied that what the Commons Commissioner confirmed was such a split right.

Mr Dance submits that his grazing right in entry No. 108 in the rights section of CL 161, not being expressly qualified as a split right on the register, is separate from his rights in entry No. 77 in the rights section of CL 162 and entry No. 821 in the rights section of CL 164, and the Judge was wrong to hold that it was limited in the way he declared it to be. Mr Dance submits, alternatively, that, if the Judge was entitled to look behind the actual words of entry No. 108 in the rights section of CL 161, he should have looked at all the historic facts and found that the grazing right is split with CL 164, but not with CL 162.

The first respondent, Robert Savery, is the only defendant who has played any active part in the proceedings.

What appears to underlie these proceedings, and the position taken by Mr Dance and Mr Savery respectively, is the entitlement to various subsidies, including under the Environmentally Sensitive Area Scheme.

Mr Dance appeals with the permission of the Judge.

For the purposes of this appeal, the legislative framework may be summarised briefly, as follows.

The 1965 Act was enacted following, and with the intention of giving effect to, the recommendations of the Royal Commission on Common Land 1955-1958. The Commission’s report (Cmnd. 462) was presented to Parliament in July 1958. It proposed a scheme for registering, among other things, common land and rights of common. Paragraph 291 of the report stated that, if the Commission’s recommendations were adopted, there would be available for inspection by owners of the soil, commoners, members of the public or anyone with an interest, actual or prospective, an authentic record of each common, its extent and boundaries, its ownership, and the rights exercisable over it.

The 1965 Act was intended to establish definitive registers of common land and to record details of rights of common. Section 1(1) provided that land in England and Wales which was common land should be registered. Section 1(2) provided that, after the end of such period, being not less than three years from the commencement of the Act as the Minister determined, no land capable of being registered under the Act should be deemed to be common land unless it was so registered; and no rights of common should be exercisable over any such land unless they were registered either under the Act or the Land Registrations Acts. Section 4 provided for provisional registration by registration authorities of common land and rights of common upon application made to the authority. Section 5 of the Act provided for objections to be made to the provisional registration, and for objections to be referred to a Commons Commissioner. Section 6 provided for the Commons Commissioner, to whom any such objection was referred, to inquire into it, and either to confirm the registration, with or without modifications, or to refuse to confirm it. If the registration was confirmed, it became final. If it was refused, it became void. Section 7 provided that, if no objection was made to a provisional registration, or if all objections were withdrawn, the registration would become final.

Section 10 provided for the conclusiveness of the matters registered, as follows:

“10 Effect of registration

The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only.”

Section 15 provided as follows as regards the quantification of grazing rights, and the effect of registration in respect of quantification:

“15 Quantification of certain grazing rights

(1)

Where a right of common consists of or includes a right, not limited by number, to graze animals or animals of any class, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals, or animals of that class, than a definite number.

(2)

Any application for the registration of such a right shall state the number of animals to be entered in the register or, as the case may be, the numbers of animals of different classes to be so entered.

(3)

When the registration of such a right has become final the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine.”

Section 18 provided for appeals to the High Court from decisions of the Commons Commissioners on a point of law.

Section 19 provided for the Minister to make regulations for, among other things, prescribing the form of the registers to be maintained under the 1965 Act and of any applications and objections to be made; and also for regulating the procedure of registration authorities in dealing with applications and with objections.

Section 22 contained definitions of expressions used in the Act. “Common land” was defined in section 22(1) to mean:

“(a)

land subject to rights of common (as defined in this Act) whether those rights are exercisable at all times or only during limited periods;

(b)

waste land of a manor not subject to rights of common; …”

The Commons Registration (General) Regulations 1966 (SI 1966 No. 1471) (“the 1966 Regulations”) were made by the Minister pursuant to the 1965 Act. Regulation 4(1) provided for every register of common land to consist of a general part, a register map, as many register units as there were registrations of land in the register, and such supplemental maps (if any) as might be necessary. Regulation 4(5) provided for the register units to be prepared in accordance with regulation 10, and for each register unit to consist of three sections, called the land section, the rights section and the ownership section. Regulation 4(7) was as follows:

“(7)

The rights section of each register unit shall be in Form 3, and shall contain the registrations of the rights of common registered as exercisable over the land comprised in the land section of the register unit, or any part thereof, particulars of the persons on whose applications the rights were registered and the capacities in which they applied, descriptions of the land (if any) to which the rights are attached, and such other information as may by any regulation made under the Act be required or authorized to be entered therein. ”

Regulation 8 provided for an application for registration of a right of common to be in Form 9.

Regulation 10 provided that a registration authority should, in making any registration, follow as closely as possible such of the model entries 4 to 12 (in schedule 2 to the 1965 Regulations) as might be applicable, with such variations and adaptations as the circumstances might require, and should mark every registration as provisional. The model entries 7, 8 and 9 were those applicable to the rights section of the register.

Pursuant to the 1965 Act and the 1966 Regulations, applications were invited for the provisional registration of common land and rights of common from January 1967 to January 1970. The provisional registration of rights of common remained open for objection until 31 July 1972.

In practice the 1965 Act proved to have a number of flaws. It was perceived to be poorly drafted, the register too conclusive and the power to amend it too narrowly confined. It was intended to be replaced by the 2006 Act. At the present time, the 2006 Act is only in force in certain areas, including Devon. The 1965 Act continues to apply outside those areas.

Section 1 of the 2006 Act requires each commons registration authority to continue to keep a register of common land. Section 2 provides that the purpose of a register of common land is, among other things, to register rights of common exercisable over land registered as common land. Section 3 contains provisions as to the content of the register. In addition to dealing with new registrations, it provides, among other things, that the register of common land should include the land registered as common land at the commencement of the section, and for the rights of common in respect of such land to include the rights of common registered at the commencement of the section. Section 3(4) provides as follows as regards the information to be registered in respect of a right of common:

“(4)

The following information is to be registered in a register of common land or town or village greens in respect of a right of common registered in it—

(a)

the nature of the right;

(b)

if the right is attached to any land, the land to which it is attached;

(c)

if the right is not so attached, the owner of the right.”

Section 3(5) provides for regulations to require or permit other information to be included in a register of common land, and to make provision as to the form in which any information is to be presented in such a register.

Section 18, which contains provisions as to the conclusiveness of the register, is as follows:

“18  Conclusiveness

(1)

This section applies to land registered as common land, or as a town or village green, which is registered as being subject to a right of common.

(2)

If the land would not otherwise have been subject to that right, it shall be deemed to have become subject to that right, as specified in the register, upon its registration.

(3)

If the right is registered as attached to any land, the right shall, if it would not otherwise have attached to that land, be deemed to have become so attached upon registration of its attachment.

(4)

If the right is not registered as attached to any land, the person registered as the owner of the right shall, if he would not otherwise have been its owner, be deemed to have become its owner upon his registration.

(5)

Nothing in subsection (2) affects any constraint on the exercise of a right of common where the constraint does not appear in the register.

(6)

It is immaterial whether the registration referred to in subsection (2), (3) or (4) occurred before or after the commencement of this section.”

Section 19 contains wider powers of correction than were in the 1965 Act.

The Commons Registration (England) Regulations 2008 (SI 2008 No. 1961) (“the 2008 Regulations”) were made by the Secretary of State pursuant to the 2006 Act.

Regulation 6(4)(a) provides as follows:

“(4)

The rights section of each register unit must be in Form 3, and is to specify-

(a)

the rights of common registered as exercisable over the land comprised in the land section of the register unit, or any part of that land;”

Like the 1966 Regulations, regulation 7(2) of the 2008 Regulations states that a registration authority must, in making any registration, follow as closely as possible the relevant model entry with such variations and adaptations as the circumstances may require.

Brent Moor and Dean Moor both adjoin the Forest of Dartmoor (“the Forest”). The Forest is not a forest in any conventional sense, but generally open and unenclosed land. The complications which have arisen in this case can be attributed, at least in part, to the historical background concerning the ownership of those lands, and a lack of appreciation at various points in the registration process of the different historical ownerships. The land in CL 164 is most (but not all) of the Forest and is part of the Duchy of Cornwall (“the Duchy”). Area A within Brent Moor is also part of the Forest and owned by the Duchy. Historically, so-called holdings “in venville” enjoyed certain rights of grazing over the Forest. They were ancient customary rights, granted by the Crown to landowners in particular parishes (“villes”), to graze their animals in the Forest on payment of a small sum of money (a “fine” corrupted to “Ven”). It is also common ground that Dean Moor and Area B of Brent Moor are not part of the Forest or of the Duchy. They are historically waste of manors lying outside the Duchy.

On 18 June 1969 Mr Dance made an application pursuant to section 4 of the 1965 Act to the Council (the relevant commons registration authority) for the registration of certain rights of common as attached to parts of Dockwell Farm.

In respect of Mr Dance’s application concerning CL 164 (the Forest), the Council made the following provisional entry No. 821:

“Estovers

Turbary

To take: sand and gravel subject to the Water Authority Provision (see Page 1)

To graze: 56 bullocks or ponies 224 sheep over the whole of the land comprised in this register unit, CL.162 and CL.218 together with straying rights onto CL.146, CL.161 and CL.187.”

In respect of Mr Dance’s application concerning CL 162 (Dean Moor), the Council made the following provisional entry No. 77:

“Estovers

Turbary

To take: sand and gravel

To graze: 56 bullocks or ponies 224 sheep over the whole of the land comprised in this register unit, CL.164 and CL.218 together with straying rights onto CL.146, CL.161 and CL.137.”

So far as concerns grazing, those entries were consistent as showing the right to graze the same number of animals as split between, among other areas, CL 164 and CL 162, with straying rights over, among other areas, CL 161.

In respect of CL 161 (Brent Moor), Mr Dance’s application, and the provisional registrations by the Council reflecting them, were different. Entry No.108 was for a right for cattle and sheep to ‘stray’ (vicinage) from CL 164 and CL 162 on to CL161. Entry No.109 was for a right to graze 110 bullocks or ponies or 550 sheep on Brent Moor (as a right binding on the waste of the manor).

Like so many others claiming rights of common under the 1965 Act Mr Dance acted at the time in person. What is apparent from his applications, and those provisional registrations, is that he treated CL 164 and CL 162 as effectively a single area of common land over which he was entitled to exercise his venville rights, so that those rights were split between the two areas and not separate and cumulative in respect of each of them. He treated them in that way even though CL 162 was not in fact part of the Forest or the Duchy, but the waste of a manor outside the Duchy. At the same time, his application, and the provisional registration, in respect of CL 161 did not distinguish between different parts within it, but claimed two separate sets of rights in respect of the whole of it. One right was the right for animals to stray from, among other areas, CL 164. The second was an independent right to graze 110 bullocks or ponies or 550 sheep as a right exercisable over the waste of a manor outside the Duchy. What will be noticed is that if, as is the case, Area A in Brent Moor is actually part of the Forest, it was a misnomer to describe his right over that part as a right to stray as opposed to a substantive right to graze; and it was equally wrong to think that Mr Dance had any right over Area A by reason of his rights over the non-Duchy manorial waste comprised in Area B (other than, perhaps, straying from Area B).

There were various objections to provisional entries in respect of CL 164, CL 162 and CL 161. They were referred to the Commons Commissioner Mr Baden Fuller. The first to be considered by him were those in respect of CL 164 (“the Forest”). He held hearings in relation to over 1000 provisional registrations in respect of CL 164 (including entry No. 821) at a series of hearings in Plymouth from April to October 1982. The Duchy conceded Mr Dance’s application for registration of his venville grazing rights. Accordingly, in his written decision dated 30 June 1983, which ran to 193 pages, Mr Baden Fuller confirmed the provisional registration of Mr Dance’s grazing rights at entry No. 821.

In a written decision dated 12 July 1985 Mr Baden Fuller addressed the objections to provisional entries in respect of CL 162 (Dean Moor). There was no objection specifically to the provisional entry No. 77, but, for reasons which it is not necessary to explain here, he decided that he had to consider whether there was anything which cast the slightest doubt on the registration. Entry No. 77 gave details of the land to which the right to graze was attached: it was that part of Dockwell Farm in the parish of Dean Prior. Reading Mr Baden Fuller’s decision as a whole, it is clear, first, that he rejected any suggestion that the right was justified by reason of venville rights over the Forest. In that connection, it is to be noted that in his decision he repeated his rejection (in an earlier decision) of the proposition that “the Forest and the Commons of Devon” were in any relevant sense one common. Secondly, he considered that there was evidence to support the express or implied grant of grazing rights by Lord Churston when Dockwell Farm, which was formerly part of the Churston Estate, was sold to a predecessor of Mr Dance. The provisional registration was therefore confirmed without modification, even though the grazing right was (because of Mr Dance’s ignorance of the historical and legal position and a mistake on his part) expressed to be split with the grazing right over CL 164 rather than being an entirely separate right to graze derived not from venville rights but from a private grant by Lord Churston.

In a written decision dated 15 November 1985 Mr Baden Fuller addressed the objections to provisional registrations in respect of CL 161 (Brent Moor). It was in this decision that, for the first time, the Commons Commissioner decided that Area A within CL 161 (which he called “the Forest Part”) had from time immemorial been treated as part of the Forest, and was part of the Duchy, whereas Area B was not part of the Duchy.

This then produced a dilemma since many, including Mr Dance, had not distinguished between Area A and Area B in making their applications for registration in respect of CL 161, and also had not made identical applications for registration of venville rights in respect of CL 164 and Area A of CL 161. Mr Baden Fuller explained that he had no power simply to make corresponding entries in CL 161 or, indeed, to treat Area A of the land in CL 161 as part of CL 164. He said at pages 11-12 of his decision :

“In my CL 164 decision dated 30 June 1983 after a hearing in 1982, I concluded that a number of registrations in such proceedings disputed had been properly made, the rights having been recognised by the Duchy, as being attached to lands in Venville, and not disputed by anyone. Mr Sturmer [for the Duchy] said that the corresponding Unit Land [CL 161] registrations were similarly recognised as being in Venville. This is not enough to enable me to equate for all purposes under the 1965 Act, the Forest Part with the adjoining CL 164 land, because of the very many CL 164 Rights Section registrations which in my 1983 CL 164 decision I decided were properly made, only very few have corresponding registrations in the Unit Lands Rights Section. I have no power (it was not at this Unit Land hearing suggested I have) to direct that the Forest Part of the Unit Land be removed from the Land Section of this CL 161 Register and by way of transfer included in the CL 164 Land Section, or to direct that any of the CL 164 Rights Section registrations shall be inserted in the Unit Land Rights Section for the first time. So by the Commons Registration Act 1965 the historic connection between the Forest Part of the Unit Land and the rest of the Forest of Dartmoor comprised in CL 164 has forever in part been broken. The Act nowhere makes this result altogether unavoidable; but even with the hindsight I have as a result of this Unit Land hearing, I am unable to think of any way by which it could have been prevented by the Duchy or anyone else except at trouble and expense disproportionate to the value of any benefit which could have resulted.”

A number of applications for registrations of rights of common over CL 161, including that of Mr Dance resulting in entry No. 108, were for registration of a right to stray from other areas. There being no such thing as a legal right to stray (as distinct from a substantive right to graze), Mr Baden Fuller decided that all those applications were improperly made except four. Those four excepted cases included entry No. 108. Mr Baden Fuller decided that, in view of corresponding rights to graze in respect of CL 164 which had been confirmed, the registrations in those four cases should, with modification, be confirmed as regards Area A of the land in CL 161. He explained as follows, at page 13 of his decision:

“Next I consider the registrations of “rights to stray” specified in Part I of the First Schedule hereto so far as possibly applicable to the Forest Part. Mr Sturmer [for the Duchy] insisted they were not properly made at least as regards those to which the Duchy had made an Objection, that is as regards all except Nos 65, 68, 92 and 108; accordingly in the absence of any evidence or argument in support of them, my decision is that all these registrations except as aforesaid were as regards the Forest Part not properly made. As regards the excepted registrations I have no note or recollection of Mr Sturmer saying anything about them; however, because the CL 164 registrations at Entry Nos 575, 580, 592 and 821 corresponding to them were by my CL 164 decision confirmed with the modifications therein set out, my decision is that these four Unit Land registrations modified by substituting “graze” for “stray” were properly made as regards the Forest Part.”

Entry No 108 in respect of CL 161 was duly amended. The word “stray” was changed to “graze”; the right was limited to that part of CL 161 marked A on the register map; and the references to other register units, including CL 162 and CL 164, were deleted. It was confirmed in the following form:

“To graze 56 bullocks or ponies and 224 sheep on the part of the land comprised in this register unit hatched red (horizontally and diagonally) and lettered A on the register map”

The Judge’s analysis was in the following stages. First, he approved and followed ([40]) the approach of the Chief Commons Commissioner in his decision dated February 1981 in Re Pickup Bank Height 220/D/231, and of Mr Baden Fuller in his written decision on CL 164 at pages 19-20, that the inclusion in the particulars of a right of common in the rights section of one register unit of a purported right to graze over another unit could not confer any right over that other register unit under the 1965 Act: any right over that other unit could only be established by a separate application for provisional registration, and was subject to the objection procedure under the 1965 Act.

Next, the Judge approved and adopted ([41] to [46]) the approach of the Commons Commissioners that, where the right to graze a defined number of animals was limited by customary constraints, such as the times of the year at which stock might be turned out, or where the right subsisted over two or more units and the numerical limit applied to them all, the possibility of such restrictions was specifically contemplated by section 15 of the 1965 Act and it mattered not whether they were mentioned on the register. In that connection, he quoted from the decision of Mr Baden Fuller in relation to CL 164, at pages 26-27. The Judge added ([46]):

“Indeed it would be surprising if the omission of unnecessary information as to a right claimed over another unit could have led to a final registration which conferred an unqualified right to graze when no such right had previously been enjoyed.”

The Judge accordingly concluded ([47) and [49]], first, that it cannot be inferred from Mr Baden Fuller’s decision in relation to entry No. 108 in respect of Brent Moor that he intended to confirm an entirely separate right to graze the defined livestock on Area A in CL 161; and, secondly, that it was apparent from Mr Dance’s application and the declared approach and reasoning of the Commons Commissioner in the related decisions that Mr Dance never claimed to be entitled to any such separate right and the Commons Commissioner was not intending to confirm one. What was intended to be claimed, and what Mr Baden Fuller confirmed, was a right split with CL 164 and CL 162. The Judge simply said:

“In my judgment the best evidence of the true position is that Mr Dance clearly understood that his right to graze the defined livestock was split over all three register units and so made his application for registration of his rights of common in the way that he did.”

Turning to the position under the 2006 Act, the Judge said ([50]) that the 2006 Act did not purport to increase rights or to confer rights where none had existed prior to the date of commencement. He said ([51]) that he did not understand the 2006 Regulations to include any general requirement that entries made prior to the date of commencement must be amended to specify rights claimed over any other register units or to identify limitations arising from split rights. Finally, he said ([52]) that section 18(5) of the 2006 Act preserves any constraint on the exercise of a right of common, such as those arising from local custom and inherent in rights split between two or more register units, whether or not such a constraint appears on the register.

For all those reasons, the Judge’s decision ([53]) was that Mr Mr Dance has a right to graze the specified animals over Area A of CL 161 (Brent Moor) only in so far as he is not already grazing the same animals over neighbouring register units CL 162 (Dean Moor) or CL 164 (the Forest).

The first ground of appeal is that the absence of any reference in entry No. 108 in the rights section of CL 161 to the grazing right being split is conclusive that it is not split with any other area.

The starting point of Mr Dance’s case on this ground of appeal is the policy, recommended by the Royal Commission in its 1958 Resport and enshrined in section 10 of the 1965 Act and section 18 of the 1960, that the register of common land is intended to provide clarity and certainty as to the existence of common land, its extent, and the rights of common exercisable over it. It was intended to avoid the need to look into ancient history and obscure points of land law. Mr Mark Wonnacott, Mr Dance’s counsel, cited, in that respect, the following passage in the judgment of Lord Denning in Corpus Christi College, Oxford v. Gloucestershire County Council [1983] 1 QB 360, which concerned the provisions of the 1965 Act, at pages 368H-369C:

“To my mind the ultimate question is: what is the effect in law of land registered in the land section as “common land” but with no “rights of common” registered in the rights section and that entry becoming conclusive under s 10? This must be judged by the effect the entry would have on a reader examining the register, who wanted to know what the position was. He is not to be credited with any knowledge of the previous history of the land. He ought to have by his side the definition of “common land” in s 22(1) of the 1965 Act: “(a) land subject to rights of common … (b) waste land of a manor not subject to rights of common; …”

Seeing that no rights of common are entered on the register, the person examining the register would at once assume that the land must be “waste land of a manor”. That is the only way of reconciling the entry in the land section with the non-entry in the rights section. As the land is conclusively to be regarded as “common land”, it follows that it must conclusively be deemed to be waste land of the manor.

Now in this case it is said that, on the agreed statement of facts, this land was never waste land of the manor. But our reader of the register is not to know this. He is entitled to go by the register itself.”

Mr Wonnacott highlighted an important example of the change from uncertainty and obscurity to certainty and clarity brought about by the 1965 Act and relevant to the present case, namely the provisions for quantification of grazing rights in section 15 of the 1965 Act. The effect of those provisions was to abolish the principle of levancy and couchancy as the measure of how many animals could be depastured where the right of grazing was not for a certain number. Under that principle a right of grazing appurtenant to land entitled the commoner to turn on to the servient tenement as many commonable cattle as the dominant tenement could maintain by its produce throughout the winter. The effect of section 15 was to require the registration of a certain number of commonable animals, and that was the number entered in the fourth column of the rights section of the register (headed “Particulars of the right of common and of the land over which it is exercisable). In Bettison v Langton [2001] UKHL 24, [2002] 1 AC 27 the House of Lords held that, on registration under section 15 of the 1965 Act, grazing rights formerly limited by levancy and couchancy became rights to graze a fixed number of animals as noted on the register; and those rights could be severed from the dominant tenement, thereby converting them from appurtenant rights to rights in gross. Mr Wonnacott referred to the following passage in the speech of Lord Scott at [60]:

“The conclusion is, in my opinion, inescapable that subsection (3) transformed the right, on registration, from being a right limited by levancy and couchancy to being a right for a fixed number of animals. That had been the intention of the Royal Commission whose recommendation to that effect was implemented by section 15. I am unable to accept Mr Chapman's argument that section 15(3) simply imposed a cap on the number of animals levant and couchant that could be grazed. If that were right, the levancy and couchancy limitation would, subject to the cap, have remained. Whatever else section 15 may or may not have done, it plainly, in my opinion, got rid of levancy and couchancy as a measure of the number of animals that, post registration, could be grazed.”

By parity of reasoning, Mr Wonnacott said, entry No. 108 in the rights section of CL 161 of the right to graze 56 bullocks or ponies and 224 sheep is conclusive that the right to graze that number of animals over Area A is a right appurtenant to that part of Dockwell Farm specified in the fifth column of the rights section of the register (headed “Particulars of the land (if any) to which the right is attached”), and is a right separate from any other right appurtenant to Dockwell Farm or exercisable over any other common land.

Mr Wonnacott submitted that such a conclusion is consistent with the universal understanding, until the Judge’s decision in the present case, that the question whether or not a right of common is a separate right or, alternatively, a split right turns entirely on what is stated in the rights section of the register. In that connection, he gave the example of the following advice by DEFRA in its Single Payment Scheme Handbook for 2011 and 2012 for commoners claiming subsidy under the single payment scheme:

“How do I know if I have common land rights or how many rights I have?

Your grazing rights will usually be listed in the common land register drawn up under the Commons Registration Act 1965. These registers are held by the local authority that is responsible for the common.

We recommend you check the common land register to ensure you know:

the number of the entry or entries to which your rights are attached;

the number and type of rights that are available to you; and

whether your rights are split.”

A note to that text in the handbook says:

“Split rights – where a common land register allows a grazier the right to graze their animals across more than one common, usually qualified in the register as ‘over the whole of this register unit and CL XXX’”

Mr Wonnacott submitted that this understanding is supported by the statutory framework. He pointed to regulation 4(7) of the 1966 Regulations and Form 3 in those Regulations, and particularly the requirement that, where the registered right of common was exercisable only over part of the land described in the land section of the register unit, then that part should be identified in the fourth column of the rights section. He said that it would be very odd if it was not also implicit that, where the right was exercisable over a larger area than the land described in the land section of the register unit, that wider area also had to be identified.

In that connection, Mr Wonnacott pointed out, as is unchallenged, that it might be quite fortuitous whether the land section of a register unit coincided with a single common. Often registration authorities made register units coincide with parish boundaries. Sometimes the geographical extent of a register unit would simply reflect the land which was sought to be registered as common land, or the land over which rights of common were sought to be registered.

Furthermore, Mr Wonnacott emphasised, Form 9 in the 1966 Regulations, which was the prescribed application form for the registration of a right of common, required details to be given of the land over which the right of common was exercisable. The notes to the Form made it clear that the applicant had to describe the whole of the land over which the right was exercisable. If it comprised the land in more than one register unit, then a plan had to accompany the application unless all the land was comprised in existing register units and the register unit numbers were quoted. That information was the basis for the registration authority in the present case, as in many others, inserting in column 4 of the rights section of the register references to other register units, and so reflecting split rights. Mr Wonnacott submitted that the fact that such information had to be supplied raises the obvious inference that the registration authority was obliged to make entries which reflected that information. He referred to regulation 10 of the 1966 Regulations as the legislative authority for the registration authorities to adapt the model entries so as to make clear that a grazing right was a split right by including in the rights section of the register unit references to other register units over which, consistently with the completed application form, the applicant claimed to be entitled to exercise the right of common. All of this, he said, reflected the policy that the register is to provide all the details a person needs to know about the existence, nature and extent of common rights.

Mr Wonnacott submitted that all this is clear enough under the 1965 Act and the 1966 Regulations, but it is put beyond any possible doubt by the 2006 Act and the 2008 Regulations. Section 2(1) of the 2006 Act states expressly that the purpose of a register of common land is to register rights of common exercisable over land registered as common land. Section 3(4) states that, in the case of a right of common, “the nature of the right must be registered”. Mr Wonnacott submitted that “the nature” of a grazing right includes whether or not it is a split right or a separate right. That provision in section 3(4) merely reflects, Mr Wonnacott said, what was always understood to be the case under the 1965 Act. He emphasised that section 18(2) of the 2006 Act excludes any possibility of undermining the conclusiveness of the register by looking to the past.

Mr Wonnacott limited significantly the scope of section 18(5) of the 2006 Act, which excepts from the conclusiveness of the register by virtue of section 18(2) “any constraint on the exercise of a right of common where the constraint does not appear on the register”. He said that section 18(5) only concerns limitations established by local custom affecting a body of commoners, which would be well known locally, as distinct from a limitation affecting a particular commoner by reason of private circumstances particular to that commoner. In that connection he referred to paragraph 107 in the Explanatory Notes on the 2006 Act published by DEFRA, which was as follows:

“107.

Subsection (5) preserves what is believed to be the present position under the 1965 Act, which is that, where a right of common is subject to any customary constraint not mentioned in the register (for example, that the rights may be exercised only at certain times of the year, that stock should be hefted in accordance with local custom, or that the times at which stock may be turned out are to be determined by a manorial or other ancient court), those constraints are preserved notwithstanding that they are not mentioned in the commons registers.”

Mr Wonnacott also lays considerable weight on the fact that the 2008 Regulations contain a model entry example of a split right.

Finally, Mr Wonnacott made a powerful submission that there are grave implications for the policy underlying the 1965 Act and the 2006 Act if, as the Judge found and Mr Savery contends, the register is not conclusive that a registered grazing right in the rights section of a register unit is a separate and not a split right where the entry contains no reference to the right being exercisable over other register units. That will, he said, promote uncertainty and disputes, possibly giving rise to the need for historical and archival investigation and to complex legal issues, with the inevitable accompanying expense. Such disputes, he pointed out, are not unlikely in view of, for example, the financial implications of subsidies, as in the present case, with consequential implications for the capital value of farms. Furthermore, and importantly, he said, if the register is not conclusive where there is no reference in the entry in the rights section to the right being exercisable over another register unit, then the reverse must equally be true, that is to say, an entry cannot be conclusive that a right is split where there is a reference on the register to the right being exercisable over other register units. He submitted that would follow from the Judge’s acceptance that any reference in the register to the right being exercisable over other register units is mere surplusage. If that is right, then the entire policy of clarity and certainty underlying the statutory scheme for registration of common rights is severely undermined.

Notwithstanding Mr Wonnacott’s eloquent and attractive submissions on the first ground of appeal, I do not accept them.

There was nothing in the 1965 Act or the 1966 Regulations which expressly required an entry in the rights section of one register unit to refer to all other register units or areas over which the same right was exercisable. By contrast, regulation 4(7) of the 1966 Regulations and Form 3 in those Regulations made clear that, where a right was exercisable only over part of the land in the register unit, that part of the land had to be identified.

It is true, as Mr Wonnacott has pointed out, that the 1966 Regulations required an applicant for registration of a right of common to identify in the application all the land over which the right was claimed, whether by reference to a plan or other register units. It is clear, however, that was for the administrative convenience of both the applicant and the registration authority. It avoided the need for a separate application for each register unit in respect of the same right of common. It enabled the registration authority, by reference to a single application form, to make the appropriate entry in the rights section of each relevant register unit; and, where any part of the area was not included in an existing register unit, alerted the registration authority to the need to create a new register unit.

The model entries specified in the 1966 Regulations, which were required by regulation 10 to be followed as closely as possible, fully support this analysis. There are three relevant model entries, namely 7, 8 and 9. One of them gives an illustration of an entry in the rights section in which the right of common is expressly confined to only part of the land in the land section. None of them gives an illustration of an entry showing that the right of common is exercisable over the land in another register unit. This shows clearly that, although an application for registration had to show the entirety of the land over which the right of common was exercisable, that was for administrative convenience for the reasons I have given, and not to comply with an implicit statutory requirement to register split rights as such in each of the register units to which they related. Had the position been otherwise, it would have been an obvious example for one of the model entries.

Mr Wonnacott is plainly incorrect in asserting that there was a universal understanding, until the Judge’s decision in the present case, that the question whether or not a right of common is a separate or a split right turns entirely on what is stated in the rights section of the register. It was not the view of the most important experts on the subject when objections to provisional registrations under the 1965 Act were being considered, namely the Commons Commissioners themselves. As the Judge observed ([42]), the point was directly addressed by Mr Baden Fuller in his decision on CL 164. Mr Baden Fuller was clearly of the view that the absence of a reference in the rights section of one register unit to the right of common being exercisable over another register unit was not conclusive that the right was not a split right. He said at pages 26-27:

“Section 15 uses the words “treated as exercisable in relation to no more animals…. than a definite number”; this does not I think mean that when a number is inserted on the register pursuant to the section, the owner of the right thereafter has under section 10 the right in all circumstances to graze that number of animals. In my view section 15 does no more than provide an upper limit. If anybody wishes to claim that the number of animals grazed by anyone at any time is, notwithstanding that it is less than the upper limit, excessive, his right to take legal proceedings is unaffected by the 1965 Act, except to the extent that section 10 is applicable. It may be therefore that in this case and in many other cases the number put on the register pursuant to section 15 may be of little practical consequence.

….

I construe section 15 showing an intention by Parliament to abolish levancy and couchancy; but I do not think it was the intention that any Court who should be concerned with a registered right of common should be bound under section 10 of the Act to assume that the right owner could graze at all times and in all circumstances the number of animals mentioned on the register without regard to the circumstances in which the right came into existence; the object of the Act is I think, to provide a register of rights, not to provide a register of regulations which would determine every conceivable dispute which might arise as to the exercise of rights.

….

It may be that as a result of decisions by Commons Commissioners, there will be registrations say, of a right to graze x cattle over one Register Unit and to graze y cattle over an adjoining Unit (rights attached to the same land); in my view it will not follow that such person can lear x + y cattle across the boundary relying on some supposed right of vicinage; there is no reason why rights over two commons should not be so connected as to require the animals on one for numerical purposes to be treated as being grazed on both. In other cases elsewhere in England I have been told that this is the local understanding and have at the request of those concerned modified registrations so that the understanding is therein expressed; but by occasionally doing this I am not saying that such an understanding (a sort of bringing of animal numbers into hotch-pot) may not in a proper case be implied without being in the Register expressed.”

I do not accept that either Corpus Christi College, Oxford, or Bettison are authority to the contrary. Corpus Christi College, Oxford, was concerned with the particular situation where a land owner successfully objected to the only right of common provisionally registered over its land, but had omitted to object to the entry in the land section. The consequence was that the registration of the land became final. The effect of section 10 of the 1965 Act was that the land was conclusively presumed to be common land as defined by section 22 of the Act. The land owner then applied to amend the register under section 13 of the 1965 Act. That section provided for regulations for the amendment of the registers maintained under the 1965 Act where, among other things, any land registered under the Act ceased to be common land. The land owner failed because it could not show that anything had happened since registration causing the land to “cease” to be common land. I do not consider that the case provides any assistance on the matters in issue on this appeal, which concern the conclusiveness of the register in relation to split rights of common where the entry for the right of common in the rights section of one register unit contains no reference to another register unit. Nor, it is clear, did Mr Baden Fuller consider that the case had any relevance to that issue. His views, which I have quoted above, that the effect of section 15(1) of the 1965 Act was only to impose an upper limit on the number of animals in respect of which a right of common was exercisable, and that it was for the Court to decide, in the event of a dispute, whether the circumstances in which the right came into existence limited the number in a particular situation, were expressed long after the decision in Corpus Christi College, Oxford.

Bettison was decided some time after Mr Baden Fuller expressed those views, but, again, the factual situation and the issue under consideration in that case bear no relevance to the present case. The issue in that case was whether the owner of land which had the benefit of a right of grazing, which was formerly limited by the principle of levancy and couchancy, but was registered under the 1965 Act as a specified number of cattle and sheep, could sell those rights to a third party and so sever them from the land. It was held that he could, so changing the rights from appurtenant rights to rights in gross. That case had nothing to do with the question, with which the present case is concerned, namely whether the effect of section 15 of the 1965 Act combined with section 10, was (as Mr Dance contends) to make it conclusive that that a registered right to graze the specified number and type of animals was not a split right in the absence of reference to another register unit or was (as Mr Baden Fuller, the Judge and I consider) merely to state conclusively a maximum number of animals that could be depastured at any time on the register unit.

Although the reference in section 15(3) of the 1965 Act to future determination by Parliament anticipates further legislation bearing on the number of animals entitled to be grazed, section 15(3) strongly supports the conclusion that the specified number of animals in respect of which a grazing right has been registered is only an upper limit and is not determinative of whether the right is a separate right or a split right. The wording of that sub-section (“the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered …” is mirrored in note 7 to part 5 of the application form specified in the 1966 Regulations (“Description of the right of common”). That note says that, when the registration has become final, the right of grazing will be exercisable in relation to animals “not exceeding the number or numbers registered …”.

It is, moreover, common ground that not every limitation or restriction on the exercise of a right of common was required by the 1965 Act and the 1966 Regulations to be stated on the register. Mr Wonnacott accepted, for example, that customary limitations as to the time at which a right might be exercised, such as where it might be exercised only in certain years or certain times of the year, would continue to apply even though not stated on the register. Significantly, that concession is made, and correctly made, even though part 5 of the application form specified in the 1966 Regulations expressly required particulars to be given if the rights were exercisable only during limited periods. This, again, is consistent with the conclusion that a limitation by virtue of the registered right being a split right continues to apply notwithstanding that the 1966 Regulations required particulars to be given in the application form of all the land in respect of which a right of common was exercisable. Mr Wonnacott conceded that there was nothing expressly stated in the 1965 Act or the 1966 Regulations which made any distinction between the kind of customary limitation which he accepted remains binding, notwithstanding the absence of any mention on the register, and other limitations

If, as I consider, that was the position under the 1965 Act and the 1966 Regulations in relation to entry No 108 in the rights section of CL 161, it was not changed by the 2006 Act or the 2008 Regulations. The 2006 Act was not enacted to make the register even more conclusive than before, but rather the reverse, in recognition that its conclusiveness under the 1965 legislative scheme had resulted in unfairness and unintended alterations of former legal rights. Mr Wonnacott contended, however, that, if he was wrong about the position prior to the 2006 Act, but correct about the meaning and effect of the 2006 Act, then the 2006 Act did impose a new requirement on existing registrations. If that is correct, the 2006 Act was, in effect, expropriatory: it made the land in Area A of CL 161 subject to a separate grazing right when that registered right had previously been a split right, without any opportunity for the owner of the land (and other commoners) to object to the change and without any right of the owner to compensation. We have not been shown any legislative, parliamentary or other material which gives any indication of such an unlikely policy or intention behind the 2006 Act.

Indeed, section 18(5) of the 2006 Act provides for the first time express statutory recognition of what was implicit in the 1965 statutory scheme, namely that the register is not conclusive as regards the absence of constraints on the exercise of a right of common if no such constraints are registered. As I have said, Mr Wonnacott has pointed out that, in relation to section 18(5), the Explanatory Notes to the 2006 Act refer only to the preservation of customary constraints, such as that the rights may be exercised only at certain times of the year, or that stock should be hefted in accordance with local custom, or that the times at which stock may be turned out are to be determined by a manorial or other ancient court, even if they are not mentioned on the register. The wording of section 18(5), however, is clear and is not restricted to customary constraints such as those mentioned in the Explanatory Notes. As the introduction to the explanatory notes makes clear, they do not form part of the 2006 Act and were not endorsed by Parliament. They were prepared by DEFRA and cannot confine the meaning of the legislation.

In any event, I do not see any substantive difference between the type of customary limitation of which examples are given in note 107 of the explanatory notes to the 2006 Act and a limitation that a grazing right appurtenant to a holding has customarily been exercised over the whole of the waste of a particular manor or the whole of a particular common now comprised in more than one register unit. That is precisely the situation with regard to the grazing right registered in entry No. 108 in the rights section of CL 161, which was (as Mr Baden Fuller decided) a venville right in respect of the whole of the Forest. For that reason, I would hold that, whatever the position under the 1965 Act and the 1966 Regulations, the effect of section 18(5) of the 2006 Act is that the wording of entry No. 108 does not preclude a limitation that the registered grazing right respect of Area A is a split right and not a wholly separate right.

That conclusion is not inconsistent with the requirement in section 3(4)(a) of the 2006 Act that, in the case of a right of common, “the nature of the right” must be registered. Reading the 2006 Act as a whole, and especially having regard to section 18(5), “the nature of the right” in section 3(4)(a) does not include all the limitations on the exercise of the right. I consider that the expression “the nature of the right” in section 3(4)(a) means the type of common right being claimed, such as whether it is a common of pasture (grazing right), pannage, estovers, turbary or piscary.

As I have said earlier in this judgment, Mr Wonnacott drew attention to the fact that, unlike the 1966 Regulations, the 2008 Regulations appear to contain an example of a model entry showing a split right. The model entry he relied upon is model entry 13, which is expressed to be an example of the situation where, pursuant to sections 16 and 17 of the 2006 Act, the appropriate national authority has made an order deregistering land as common land and directing the registration of different land as common land in its place. Although Mr John Summers, counsel for Mr Savery, disputed that model entry 13 is an example of a registered split right, I think it probably is. It appears to be an example of a situation in which the release land specified in the order under section 17 is only part of the common land, and the register is amended, pursuant to the order, to show that the registered rights of common are in future exercisable over both the balance of the former common land and the replacement land.

Model entry 13 in the 2008 Regulations does not seem to me, however, to assist Mr Dance on the first ground of appeal. It has never been Mr Savery’s case that it is or was improper for a registration authority to place on the register details of other register units over which a right of grazing is exercisable. The significance of model entry 13 is that it is the only example in the regulations made pursuant to the 1965 Act and the 2006 Act of an express registration of split rights, and it applies only in the particular situation of an order under section 17 deregistering common. That serves only to highlight the absence of such a model entry in the case of an historic right of common exercisable over the land in more than one register unit – a situation which often existed, which had always been required to be identified on the application form, and in respect of which there was, by the time the 2006 Act was enacted, a well established and widespread practice of referring on the register to all the register units over which the right was exercisable.

Finally, on the first ground of appeal, I do not accept Mr Wonnacott’s important submissions as to the practical consequences for the scheme of commons registration if the register is not conclusive that a right is not a split right where no details of split are given on the register. In the first place, I reject Mr Wonnacott’s contention that, if the Judge is right in the present case, the register must equally be inconclusive in the reverse situation, that is to say where a right is expressly registered as a split right: the register would equally not be conclusive and it would be open to the holder of the right to show that the registration details were incorrect in that respect. I do not see why that should follow. If a right has been finally registered as a split right, that is to say subject to the constraint that the right is exercisable for the specified number of animals over the land comprised in more than one register unit, then I cannot see any proper basis for going behind the details of the register in order to establish that there always was a greater or more extensive right of common than was registered. That would certainly be inconsistent with the legislative scheme and the policy underlying it, under which Parliament imposed a time limit for applications for registration so as to make more transparent the existence of common land and the maximum burden of common rights to which it was subject. There is nothing in the 1965 Act or the 2006 Act or the regulations made pursuant to them which would justify a right to claim more extensive rights than those registered. That situation is to be distinguished from the present case, and the issue presently under consideration, namely whether it is possible for the registered right of common to be less extensive than as registered because it is subject to limitations or (in the words of section 18(5) of the 2006 Act) constraints which were not required to be, and were not, registered.

It is true that, in his decision in respect of CL 164, Mr Baden Fuller described (at p. 27) the words referring to other register units as “surplusage”. They are surplus, in the sense which he elaborated, namely that the reference in the rights section of one register unit to the right being exercisable over the land in another register unit could not create any right in relation to that other register unit. The rights exercisable in respect of that other register unit could only be decided in the context of any provisional registration in respect of that register unit, any objections to that provisional registration, and the resolution of those objections. That was the point made by the Chief Commons Commissioner in his decision dated 11 February 1981 in Re Pickup Bank Height 220/D/231, to which Mr Baden Fuller referred in his decision on CL 164 (at p. 20). The Chief Commons Commissioner said as follows in that case (at pp.1 and 2):

“The Regulations are drafted on the basis that each register unit is to be self-contained. … I have therefore come to the conclusion that the reference to Register Unit No. CL 139 in Register Unit No. CL 9 was not authorised by reg. 10(2) and has no legal effect. This reference must be regarded as surplusage. Surplusage is defined in Jacob’s New Law Dictionary (10^th ed. 1782) as “a superfluity or addition more than needful”. Such words in a document are to be rejected as surplus, repugnant and void, for the document is complete without them: see 2 Hawkin’s Pleas of the Crown 623, s.10. I can appreciate that it may serve a useful purpose in indicating that a right exercisable over the land comprised in Register Unit No. CL X is also registered in respect of the land comprised in Register Unit No. CL Y and Register Unit No. CL Z, but any right there may be in respect of the land comprised in Register Units Nos. CL Y and CL Z must be sought in those Register Units and is not conferred, reinforced or in any way affected by the entry in Register Unit CL X .”

Furthermore, I do not accept Mr Wonnacott’s predictions about the extent to which the statutory scheme would be undermined even if the Judge’s decision is restricted to the situation in which there is no reference on the register to the right being a split right. It would seem that, in most cases in which the application form for registration specified that a right of common was exercisable over a more extensive area than the land covered by one register unit, the registration authority did refer to all the other units in the entry in the rights section of each relevant register unit. It will therefore probably be a rare case in which it is sought to go behind the register to establish that a right is not a separate right but a split right. The situation arose in highly unusual circumstances in the case of entry No. 108 in the rights section of CL 161. Those circumstances were that the Commons Commissioner both changed a claimed right to stray from the land in other register units into a right to graze, and also split the land in CL 161 into two so as to reflect an historical connection of part of the land with another register unit (CL 164), but at the same time he deleted from the provisional entry the cross-references to other register units (including CL 164) from which the application for registration had claimed there was a right to stray. Those circumstances were plainly exceptional.

The second ground of appeal is that the Judge should not have held that Mr Dance's registered right of grazing in respect of Area A in CL 161 was split with CL 164 and CL 162, but should have held that it was split only with CL 164. As I have said, the Judge’s short explanation ([48]) of his conclusion on this point was that Mr Dance understood that his grazing right was exercisable over the three units CL 164, CL 162 and CL 161, and that was reflected in the way he made his application for registration (scil. for straying onto CL 161 from CL 164 and CL 162).

Mr Summers amplified that line of reasoning in his oral submissions. He contended that a person could not have greater rights than those specified in the application for registration. He submitted that is a necessary inference from the time limit imposed by the statutory scheme on applications for registration of rights of common. Furthermore, he submitted, it is consistent with the policy objectives underlying the statutory scheme that the enquiry as to the nature of the split rights should be limited to examination of the application for registration, the provisional registration and any related decisions of the Commons Commissioners. In the case of entry No. 108 Mr Dance applied for a right to stray from the land in four other register units, including CL 164 and CL 162. Mr Summers said that, if that was to be treated, as it was treated by Mr Baden Fuller, as a right to graze, it was an application for a right to graze split between CL 161 and those other register units.

I respectfully disagree with the Judge’s brief reasoning in support of his conclusion on this issue, and I do not accept the submissions of Mr Summers on the point. I would allow the appeal on the second ground of appeal.

On the basis, as I have held, that the Court is not precluded from finding that the right to graze in entry No. 108 in the rights section of CL 161 was a split right, there is nothing expressly stated in the 1965 Act or the 2006 Act or the regulations made pursuant to them that confines the Court, in determining the areas over which the right is split, to the application form. Nor is that a necessary implication of the statutory framework. In the present case, Mr Dance’s application in respect of CL 161, which was provisionally registered as entry No. 108, was for a right to stray. No such right could exist as a right of common, as Mr Baden Fuller made clear in his decision on CL 161. Mr Baden Fuller saved the registration by modifying the registration from a right to stray to a right to graze and confirming it as modified, pursuant to his powers under section 6(1) of the 1965 Act. There was no appeal against the decision of Mr Baden Fuller, and it has not been contended in the present case that his decision was a nullity or should be set aside as in excess of his powers. In effect, he interpreted Mr Dance’s application as one intended to be for registration of a legal grazing right, but which, through lack of legal knowledge, had been expressed as a right to stray.

It is perfectly clear from his decision on CL 161 that Mr Baden Fuller was able to take that course, and did so, because, and only because, Area A in CL 161 was historically part of the Forest and, in his decision on CL 164, he had confirmed Mr Dance’s venville right to graze the Forest.

It is equally clear from Mr Baden Fuller’s decision in respect of CL 162 that the registered right of grazing in entry No. 77 in the rights section of CL 162 had a quite different origin from Mr Dance’s venville rights. Entry No. 77 had nothing to do with venville rights or the Duchy’s ownership of the Forest. On the evidence before Mr Baden Fuller, the rights registered at entry No. 77 most probably arose from an express or implied grant by Lord Churston on the sale of Dockwell Farm in 1949. In any event, they were granted over land which was not part of the Forest or the Duchy but was part of what was historically a manor outside the Forest.

Accordingly, as a matter of historical fact, as found by Mr Baden Fuller in his decisions on CL 164, CL 162 and CL 161, the right to graze Area A in Brent Moor as registered in entry No. 108 in the rights section of CL 161 was split with the land in CL 164, but not the land in CL 162. If Mr Baden Fuller had chosen to do so, I can see no reason why, when modifying entry No. 108 to a right to graze, instead of deleting all the references to other register units in the provisional registration, he could not have deleted all of them other than CL 164. If that is correct, then I cannot see any reason why the Court should not now be able to achieve the same result by declaring that the right to graze in entry No. 108 of the rights section of CL 161 is split with CL 164, but only CL 164. I cannot see any reason why Mr. Dance’s lack of knowledge of the legal and historical position, and his mistake in the way he completed his applications for registrations in respect of CL 162 and CL 161, should preclude the Court from now deciding the true areas in respect of which historically his right to graze Area A in CL 161 was split, namely with CL 164. As it happens, the Court can do so without venturing outside Mr Dance’s applications for registration and the related decisions of the Common Commissioner, but I do not consider that the Court is in principle legally confined to those documents.

For those reasons, I would allow this appeal to the extent that the declaration in the Judge’s order should be altered so as to provide that the grazing right in entry No. 108 in the rights section of CL 161 is split with CL 164, but only CL 164.

I agree, and although we are differing from the judge on the second point, there is nothing that I wish to add.

I also agree