Ashbrook, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs

The claimant is the General Secretary of the Open Spaces Society (OSS). It was founded in 1865 under the title ‘The Commons Preservation Society’, largely because of the perceived threat to Commons which resulted from plans to sell Putney Heath and to empark Wimbledon Common. Since then the Society has been active in promoting measures to protect Commons from attempts to impede access or to inclose. It is consulted by the defendant on all applications made to her which affect Commons.

This claim concerns Wisley Common in Surrey. It lies at the south west of the junction between the M25 and the A3. In August 2000 Surrey County Council, which manages the Common since the owner cannot be traced, issued a document asking for public assistance in determining its future management. The OSS in its response made it clear that it was resolutely opposed to fencing on common land. Following consultation, Surrey County Council wrote a letter dated 28 November 2001 to the OSS which enclosed the leaflet announcing its final decision, namely that a stock fence was considered to be the best all round solution and that an application would be made to the defendant pursuant to Section 194 of the Law of Property Act 1925 to erect a fence, part of which would be on the Common land and so would require consent.

Wisley Common is a designated Site of Special Scientific Interest (SSSI) which supports a number of scarce heathland species. The heathland has diminished since 1948 because of the lack of grazing which has allowed scrub and trees to encroach and bracken to take over from the heather. Clearance of the invading vegetation by mechanical means and the use of volunteers had not proved particularly effective, whereas temporary grazing in selected areas within electric fences had. It was decided that low intensity grazing was the only viable means of preserving the heathland and some of the rarer fauna and flora which it supported. The OSS does not quarrel with the proposal to introduce grazing, which is supported by English Nature and other bodies concerned with the preservation of wildlife. Some means is needed to avoid stock straying onto the main roads. The County Council’s position was summarised in the letter of 28 November 2001 thus: -

“We believe fencing Wisley Common is essential because its SSSI/pSPA status can only be protected and its biodiversity enhanced by grazing the entire heathland area. Its proximity to two of the busiest motorways and trunk roads in the south-east require that it is essential to protect public safety by fencing and this is ‘an overriding need’”.

The OSS continued to object to fencing. It claimed that the problem of straying could be controlled without a fence by shepherding. It contended that the proposal was not of benefit to the neighbourhood and would have an adverse effect on the public’s enjoyment of the Common: it was severely contrary to the public interest.

On 1 October 2003 the defendant, believing she was entitled to do so in accordance with s.194 of the 1925 Act, gave her consent to the erection of the stock proof fencing. The OSS obtained advice from leading counsel and on 27 November 2003 wrote to the Treasury Solicitor asserting that the legislation required that a local public inquiry should be held and indicating that proceedings for judicial review would be brought to quash the consent. This claim was lodged on 19 December 2003. Following a refusal of permission on the papers, Charles J granted permission on 6 May 2004. The claimant seeks a declaration that on the true construction of s.194 of the 1925 Act the defendant is not entitled to give consent under it without causing a public local inquiry to be held and an order quashing the decision of the defendant.

The claimant does not contend that the decision to give consent is irrational or that there are any grounds to challenge it other than that based on the alleged need for a local inquiry. Mr Lawrence, Q.C. candidly accepted that the holding of an inquiry would not be likely to change the outcome. But he correctly submitted that, if on its true construction s.194 required than an inquiry be held, a decision reached without holding an inquiry would not be lawful. It is somewhat strange that this argument has only been raised in 2003 since the defendant and her predecessors have been construing s.194 in the same way since 1925. Furthermore, the OSS have been consulted on all applications made under s.194 and have not before now objected to the defendant’s construction.

In dealing with an application under s.194, the defendant puts an advertisement in the local press inviting the submission of objections or representations. These are copied to the applicant whose comments are in their turn copied to the person who made the objections or representations. Once the case officer is satisfied that all relevant information has been provided, the decision will be made unless it is considered that an inquiry should be held. This will happen according to criteria published by DEFRA, namely: -

“(a)

Where a significant number of objections to the proposed works have been received, or

(b)

where the issues appear complex, or

(c)

if it is considered that further information about the proposals is needed and that this could only be obtained by holding a public local inquiry.

Mr Hopkinson, the head of the Common Land Branch in DEFRA, a statement from whom is before me, points out that, if a public inquiry is to be held in every case in which the application is prima facie allowable, there would be a significant waste of resources. If the claimant is correct, even an application for relatively minor works which everyone agrees should take place because they would obviously be beneficial could not be approved without a public local inquiry. He has produced figures which show that between 1999 and 2003 only about 10% to 15% of decisions were made following a public local inquiry. The OSS, who would have been aware of all of them, has never suggested that the defendant has failed to reach satisfactory in the sense of reasonable decisions. Mr. Hopkinson also stated that in 51% of applications in which no inquiry was held there were no objectors and in 91% there were three or fewer.

With that introduction, I must now set out the relevant statutory provisions. Section 194 of the 1925 Act applies to any land which is subject to rights of common at the commencement of the Act, namely 1 January 1926 (s.194(3)). Section 194(1) provides: -

“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 [now the Secretary of State] 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, 1854 to 1882, shall be acceded to or not”.

Section 193 of the 1925 Act gives members of the public ‘rights of access for air and exercise’ to certain common land.

Inclosure of commons was a very contentious issue in the 19^th century. Lords of the manor who generally owned common land were concerned to make the best use of it for themselves, whether for agriculture or to build on as the population grew. The Inclosure Act 1845 is entitled: -

“An Act to facilitate the Inclosure and Improvement of Commons and Lands held in common …”

The battle for the preservation of common land for the benefit of members of the public and to enable access to it to be maintained culminated in s.194 of the 1925 Act, but this repeated earlier statutes and the language is identical to that in some of them. Some subsequent statutes or subordinate legislation have used the same words. The 1876 Act states in its preamble: -

“Whereas by the Inclosure Acts 1845 to 1868 upon the application and with the consent of such of the persons interested in any common … the Inclosure Commissioners are empowered by provisional order … to authorize 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 … may be situate (hereinafter included under the expression ‘the benefit (sic) of the neighbourhood) …”

Section 7 sets out the terms and conditions which may need to be included in any order made so as to comply with the obligation to have regard to the benefits of the neighbourhood. Section 10 contains a number of rules which have to be observed by the Commissioners with respect to an application for a provisional order for the regulation or inclosure of a common. The rules would today be dealt with by means of regulations since they govern procedure. They require the publication of a notice of application by whatever means the Commissioners consider appropriate, provided that a notice is always to be inserted in at least one paper circulating in the neighbourhood (s.10(1)). The application must be in writing and be accompanied by a map (s.10(2)). Section 10(3) I should cite. It reads: -

“On making the application in respect of any common, the applicants shall furnish the … Commissioners in answer to questions previously submitted or otherwise in such manner as the … Commissioners may from time to time direct, with information bearing on the expediency of the application answered in relation to the benefit of the neighbourhood as well as to private interests”.

S.10(4) sets out in more detail what must be dealt with in the evidence submitted and specifies that, in the case of an application for inclosure, the applicants must identify the advantages to be derived from inclosure as opposed to regulation and ‘the reasons why an inclosure is expedient when viewed in relation to the benefit of the neighbourhood’”.

S.10(5) deals with evidence in relation to private interests, that is to say, the interests of those interested in the common, who would normally be the owners or the commoners. Finally and most importantly for the purposes of this claim, s.10(6) provides: -

“The … Commissioners shall take into consideration any application made to them as in this Act provided, and if satisfied by the information furnished to them as aforesaid, or by any further inquiries made by themselves or an Assistant Commissioner, that a prima facie case has been made out, and that, regard being had to the benefit of the neighbourhood as well as to private interests, it is expedient to proceed further in the matter, they shall order a local inquiry to be held by an Assistant Commissioner”.

Section 11 deals with the procedure applicable to the holding of a public local inquiry. It requires that notices of the meeting be posted on the church door of the parish church and elsewhere which encourage anyone interested in the application to attend the inquiry and to be heard. S.11(6) enables the Assistant Commissioner himself to make any inquiries he considers advisable.

Section 7 of the 1876 Act then sets out the matters which the Commissioners (for whom the Minister is to be substituted when considering s.194) must take into consideration. They are identified (although as a single matter) as ‘the question whether such application will be for the benefit of the neighbourhood’. S.10(6) requires them explicitly to take into consideration ‘any application made to them as in this Act provided’. That must mean an application which includes all the information which s.10 requires it to contain, some of which may have resulted from questions asked or information sought by the Commissioners (s.10(3) and (4)).

There was no provision in the rules set out in s.10 of the 1876 Act for written representations to be made by those who wished to comment on or object to any application. No doubt Commissioners would not have ignored any such material, but the need for a local inquiry can readily be understood in times when adult literacy was by no means as widespread as it now is. Furthermore, the issue of regulation and, more particularly, inclosure of commons had much more immediate political interest than now because of continuing attempts by owners to inclose or to reduce public access to commons. In his book ‘Commons Forests and Footpaths’ written in 1910, Lord Eversley, the founder of what has become the OSS, dealing with the situation towards the end of the 19^th century says: -

“The spirit of encroachment may appear to slumber for a time, but in reality it is always on the watch for opportunities. The fear of resistance may deter the inclosure of Open Spaces in populous districts, but it is not of much avail to prevent the filching of bits of rural Commons”.

So it was that in 1893 there was passed the Law of Commons Amendment Act which was designed to prevent owners of common land circumventing the 1876 Act by reliance on the Statute of Merton (the Commons Act 1236) or the Statute of Westminster the Second (the Commons Act 1285). The 1893 Act provided by s.3: -

“In giving or withholding their consent under this Act, the [Secretary of State] 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 [Secretary of State] before forming an opinion whether an application under the Inclosure Acts shall be acceded to or not”.

The wording is the same as that contained in s.194(1) and Mr Laurence submits that the construction of s.3 of the 1893 Act should determine the true construction of s.194.

Although the promoter of s.3 of the 1893 Act was Lord Thring, who, Mr Laurence informed me, was, before being ennobled, an eminent Parliamentary draftsman, the wording of it is not as clear as it should have been. It requires the Secretary of State (1) to have regard to the same considerations as are directed by the 1876 Act to be taken into consideration and (2) if necessary, to hold the same inquiries as are directed by the 1876 Act to be held before forming an opinion whether an application shall be acceded to or not. The words ‘if necessary hold the same inquiries’ have created the argument in this case. The word ‘inquiry’ has more than one shade of or meaning, although each involves the seeking of information. If one makes an inquiry, one is asking for information and the expression means little more than asking a question. If one holds an inquiry, the word suggests some sort of hearing at which information is to be obtained. The expression ‘hold an inquiry’ is not appropriate if all that is meant is that information is sought by X from Y. Thus the expression ‘hold the same inquiries’ would suggest that what is being referred to is the local inquiry which s.10(6) of the 1876 Act requires the Commissioners to arrange to be held if satisfied that a prima facie case has been made out and it is expedient to proceed further. It is not apt to refer to the ‘further inquiries made by themselves …’ in the earlier part of s.10(6). The difficulty in the way of that construction is the use of the plural, since the local inquiry is in the singular. But that does not seem to me to be a real difficulty. S.194 of the 1925 Act and s.3 of the 1893 Act are dealing with generic matters and so the use of the plural is not impossible. For example, in s.10(1) of the 1876 Act, although the section commences by reference to ‘an application’, reference is to ‘the applicants’. I recognise, of course, that there may be more than one applicant making an application, but the general rule has for long been that the singular will include the plural. And the Interpretation Act 1978 provides, as did its predecessor, that words in the plural include the singular.

Mr Laurence has made detailed inquiries to try to obtain a report of what Lord Thring said in promoting s.3 of the 1893 Act in an endeavour to rely on the principle established in Pepper v Hart [1993] A.C.593. He has been unsuccessful because no report exists (1893 being before Hansard was established as the official report). In any event, I would only have been able to have regard to such material if there were an ambiguity in the provision. Furthermore, what was intended in 1893 may not provide the answer to the construction in 1925 because there is always the possibility that Parliament believed in 1925 that the provision in question had a different meaning and enacted it in accordance with that belief. Thus if the Pepper v Hart principle could be used, it would be necessary to see whether any guidance was given by the minister responsible for s.194. Since I do not think there is an ambiguity in s.194 in that there are good reasons to construe it in accordance with the construction applied by the defendant, I do not need to consider it nor should I be influenced by what was said when s.194 was being discussed in Parliament.

Mr Laurence recognises that his construction means that every application, however minor the works, which falls within s.194 must be considered in a public local inquiry if it is to be approved. This will be the case whether or not there have been any objections and even if the works would in everyone’s view be beneficial and desirable. That is an absurd situation and it is not made any less absurd by the recognition that in 1876 that was what Parliament required. Regulation suggests something rather more extensive than the execution of what might be minor works and inclosure obviously affects the very existence of the common. In the light of the importance attached to the preservation of commons, which were under threat from owners, so that they would provide areas of recreation for people generally, it is not at all surprising that Parliament wanted to ensure that local people in particular should be able to make their representations.

A further difficulty in the way of Mr Laurence’s construction is that there is no sensible effect to be given to the words ‘if necessary’. He submits that their omission would have made no difference and that they were inserted so that it could not be argued that an inquiry had to be held even though no prima facie case was established and it was decided that it was not expedient to proceed. Such a construction if the words ‘if necessary’ had been omitted would in my view have been wholly unreasonable and I cannot imagine that anyone, let alone a former Parliamentary draftsman, would have regarded it as something which needed to be guarded against. It is, incidentally, worth noting that in the Law Settlement (Facilities) Act 1919, which dealt with the compulsory acquisition of land by local authorities for the purpose of small holdings or allotments, in section 28(2) it was provided that any proposed acquisition of common land was subject to consent by the Secretary of State which must be exercised in accordance with the 1876 Act approach. S.28(2) uses the same language as s.3 of the 1893 Act but omits the words ‘if necessary’. That was obviously because the effect of a compulsory purchase would be the extinction of the common or the material part of it and that was serious enough to require a local inquiry. But it also makes the point that Parliament did not consider that the omission of the words produced the absurd result that an inquiry was required even when the Secretary of State had decided that the application should not proceed.

Mr Laurence submits that the words ‘hold the same inquiries’ in s.194(1) should read ‘make or hold the same inquiries’. But he accepts, as he must, that under s.10(6) of the 1876 Act the Commissioners had a discretion what if any inquiries they should make. They only had no discretion as to the holding of an inquiry if the preconditions were satisfied. That being so, the words ‘if necessary’ are indeed mere surplusage and meaningless unless they enable something not to be done which would otherwise have to be done. Thus they can have a sensible effect in relation to the holding of an inquiry and that is of course consistent with the failure to refer in the section to the making of inquiries.

It is clear that the only obstacle to a sensible construction of s.194(1) is the use of the plural ‘inquiries’ rather than the singular ‘inquiry’. Everything else points to the correctness of the defendant’s construction. The use of the plural, for the reasons I have already given, is not an obstacle. I have no doubt whatever that Mr Laurence’s submissions must be rejected and that the construction adopted by the defendant, which has been unchallenged for nearly 80 years, is correct.

This claim must accordingly be dismissed.