[Electoral Division: Kirkby Stephen]
To consider a report from the Executive Director – Economy and Infrastructure (copy enclosed)
Mrs Gray attended the meeting at this point, but abstained from the vote as she had not been present for the whole of the discussion.
Mr Hamilton left the meeting part way through this item and did not take part in the vote.
The Development Control and Regulation Committee considered a report from the Executive Director – Economy and Infrastructure which detailed two applications received from Gillian Margaret Hedworth to amend the register of common land at entry 5 of register unit CL3 Eastern Martindale Common (Hallin Fell, Swarth Fells, Fusedale (“CL3”), in consequence of an historic severance of a right of common.
Members were asked to determine whether, when Hause Farm and some of its associated land was repossessed by the bank, did the common rights that attached to a section of that land also transfer, or were retained by the previous owner.
The purpose of the report was to request Members make a decision as to whether the applications should be granted and amendments made to the Council’s register of common land.
The Officer explained how both applications centred upon the same key issue, the effect of a Charge by which land at Hause Farm was charged to UCB Bank by Mrs Hedworth and her husband. More specifically, both applications contended that the right of common was not included in the Charge and thereby ceased to attach to the Charged Land, so that, in other words, the right of common was severed.
The Officer further explained that it had been pragmatic to consider the material received across both applications when coming to a recommendation for each application. Members were reminded that each application was still independent and that two separate votes would need to be carried out.
Members were informed that two objections were received, one from the Rowleys, and one from a Mr Christopher Lasper, who had no legal interest in the land.
The Rowleys’ objection involved a dispute between themselves and Mrs Hedworth as to the ownership of the right to graze 135 sheep on register unit CL3. The Officer explained that this dispute largely came down to the Charge document, which itself did not mention the common rights. Members were shown extracts from Section 62 of The Law of Property Act 1925 which indicated that a conveyance would be deemed to include any attached rights unless a contrary intention was expressed within the document itself. Members were told of correspondence made prior to the Charge which suggested that the intention was to exclude the grazing rights, but were reminded that this exclusion was not mentioned in the Charge itself.
Members were reminded that further details of these contentions were provided within the report and within the bundle of documents that were available by request, and that whilst the position put forward by the applicant was an arguable one, the Officer found that on balance the rights were not included within the Charge.
Mr Lasper’s argument was that common rights were attached to the farm as a whole, and not any part. Therefore, Mr Lasper argued that all 350 of the grazing rights became severed from the land when the Charge was entered into and therefore all of the grazing rights were held in gross as a separately tradeable asset from that point.
The Officer explained that there was some force in Mr Lasper’s arguments and talked Members through some of the relevant case law on the subject, including a brief analysis of the Wyat Wild’s Case and the White V Taylor case. Members were also shown extracts taken from DEFRA’s Guidance to Commons Registration Authorities 2014 which provided some anecdotal evidence of partial severance being possible.
The Officer stated that, in his opinion, the relevant case law showed that, on the balance of probabilities, Officers’ established view that an apportionment of a dominant tenement would not result in the severance of a right of common was correct (unless there was a clause reserving, assigning or apportioning the right).
Upon conclusion of the report the Officer’s opinion was that the applications had been validly made and that the purported severance of the grazing rights attached to the Charged Land was potentially lawful.
Despite correspondence prior to the Charge being created suggesting that the common rights were to be excluded, the Charge itself was silent on the matter. Officers were therefore of the opinion that the common rights were included within the Charge placed over the Charged Land.
If the rights were intended to be excluded at the time of the final execution of the Charge, then the omission of a clause excluding them was a mistake of law, and one that was not picked up at the time.
Officers believed that the grazing rights further passed automatically with the Charged Land under the order made by the Court of Appeal on 4 December 2003 and the consequential sale.
After carefully reviewing Mr Lasper’s representations, Officers concluded that the Council’s current position should be maintained, in that an apportionment of a dominant tenement would not result (in the absence of any clause reserving, assigning or apportioning the right), in the severance of the entire right of common.
Officers found that the 135 grazing rights (assigned to the Charged Land and calculated via a rateable apportionment) were not severed and remained attached to the Charged Land.
It was recommended that this Committee resolve to reject each application and to leave the commons register unaltered.
Members asked for clarification on whether the grazing rights were something that was tangible and could be sold, dedicated or transferred, or only applicable to the land in question.
The Officer said in the past it was possible to sever rights from the land and hold them in gross as a separately tradeable asset, but that this had been prohibited since June 2005.
Members asked for confirmation of the split in numbers of sheep attached to each property, and whether these had been disputed.
The Officer responded to say there were 350 sheep in total, spread across 17 fields. He understood that the rights had been split proportionally based upon acreage and that there had been no dispute over this split, apart from the contentions made by Mr Lasper. He was not aware of any dispute over the rights in any of the other fields.
One of the members asked for clarification on the information contained within the update sheet, and the letter received from Tait Farrier Graham. She asked for clarification about the significance of this in terms of the Committee’s consideration of this. She wanted to ensure all views were considered before a decision was taken on this.
The Commons Officer informed the member that the applicant had requested that the report be released to them earlier than the legal requirement of 5 clear days before the meeting. However, this had not been possible.
The Lead Lawyer reassured members that the applicant and their solicitor had had ample opportunities to make representation before the report was published.
The 2010 application, which was still outstanding, had been unknown to exist by all the current Officers. As soon as officers became aware of it the application was added into the system. The Commons Officer did not believe that the delay would have any impact on the decision making process as the same fundamental issue is being assessed.
The Chair reminded members that this item would be dealt with under two separate votes.
Members wondered whether the changes in legislation referred to throughout the report had any impact on the decision making process.
The Commons Officer responded to say application CR19 had been received in 2010 when the previous legislation was in place, and CA14/52 was under the new Act and regulations. Fundamentally though, it was the same issue, just covered by different legislation.
The Chair then opened the meeting up to public participation.
Mr Christopher Lasper had requested the opportunity to address the committee and he was rung into the meeting.
Mr Lasper wanted to stress something which he felt had been left singularly unclear by Officers. There were two distinct applications before members today but Mr Lasper was only concerned with the earlier application CR19, from 2010. This was not affected in any way by the 2006 Act, nor the regulations made under it. This was governed exclusively by the 1965 Act and Regulation 29 of the Commons General Regulations 1966.
He spoke to say that in his opinion the only issue for members to consider was to read Entry 5 and decide what it meant.
The only evidence given in relation to the attachment of the 350 grazing rights appeared in Entry 5, and he read this out for members.
Mr Lasper felt that Mr Weatherill had failed to point out to members that Hause Farm and the reference to the OS numbers not only comprised fields but also buildings. He wondered how it would be possible to attribute any grazing rights to buildings. Unless the objection was overcome then he felt that the theory being used by the officers was an impossible one.
He wondered how anyone would have supposed that any of the grazing rights passed to the owners of the “2nd home” and were not all retained by the owners of the farmland. He felt that the officers had not address this but also succeeded in blurring it.
He believed that the Officers could point to no statute, nor decided case, nor textbook, that compelled (or even favoured) that solution.
Mr Lasper concluded that if the Committee chose to deprive Mrs Hedworth of one third of her grazing rights then members needed to be satisfied that there were clear legal grounds to do so.
Mr Lasper urged the Committee to remit this case to the Officers for their reconsideration of the law consistently.
The Chair thanked Mr Lasper for his statement and there were no questions from members.
The Chair accepted that issue was extremely complex, however, he moved the Officer recommendation, and this was duly seconded. He reminded members of the need to conduct two separate votes on the recommendations.
The first vote was taken in relation to application CR19 number 1353 , with 13 for, 0 against and 2 abstentions it was
RESOLVED, that the Committee reject the application for CR19 number 1353 for the reasons contained within the report, and on the specific grounds that, on the balance of probabilities, severance of a right of common did not take place and the disputed common rights remain attached to the land in question.
A vote then took place on CA14/52. With 13 for, 0 against and 2 abstentions it was
RESOLVED, that the Committee reject the application for CA14/52 for the reasons contained within the report, and on the specific grounds that, on the balance of probabilities, severance of a right of common did not take place and the disputed common rights remain attached to the land in question.