The Battle for Broxhead Common
My Fight for Riders’ Rights
* It is the Secretary of State, not the landowner who must have regard to the benefit of the neighbourhood!
* The Court of Appeal cannot be perverse or act against the public interest.
* The Secretary of State’s consent has never been sought.
Says Maureen Comber
I hope you have all had a good look at the Consent Order from the Court of Appeal. If you have you will see that the pages are mis numbered, or at least that is what I thought for a time.
Whatever on: 22nd June 1978, HCC Report of County Sec. 22.06.7816082020_0001. This is almost one month after the Court of Appeal hearing.
Paragraph 8 says they were supported by the BCA to reach a settlement. Why would any settlement have been considered necessary for the BCA? They had won against Mr Whitfield in the High Court and the Consent Order from the Court of Appeal affirms the Chief Commons Commissioner’s Final Decision. Perhaps the County Secretary is referring to Mr Connell and Mrs Cooke but they were not representing the BCA. Paragraph 9a.
The Order envisages Mr Whitfield making application to the Secretary of State supported by HCC for consent under section 194 LP 1925 to the fences surrounding the 80 acres. The reason consent was required is that they had been erected in 1963 without consent and prevented access to the 80 acres. Section 194 originally applied because of the 1/1/26 (the date of the commencement of LP 1925) before which the 80 acres was subject to rights of common.
The compromise of the appeal did not however change things.
If Mr Connell did release all his rights over the 80 acres on or after 24/5/78 then it was not done under any statutory provision therefore despite Mr Connell releasing his rights sec.194 continued to apply to the land and the fences continued to be unlawful.
The Parties to the appeal of Brightman J obviously recognised that section 194 would not cease to apply even after Mr Connell released his rights, which is why they made provision as mentioned above for Mr Whitfield to make an application to the Secretary of State for his consent to the erection of the fences.
HCC never agreed that it would remain inactive if Mr Whitfield failed to seek or was refused the consent of the Secretary of State. If HCC had formally considered the matter at any time after 24/5/78 and correctly directed itself on it, they would surely have insisted on Mr Whitfield seeking the Secretary of States consent to the fences and if he refused to seek or failed to get consent HCC would have sought an order of the county Court for removal of the fences.
Paragraph 9b. Makes it clear that HCC interpreted the Consent Order correctly as requiring Mr Whitfield to apply to the SOS. Plainly the issue of renting the unenclosed part was being presented as what HCC saw as a package reflecting the compromise reached. Paragraph 10, The County Secretary realised that such consent would not be a foregone conclusion. In fact, the report understates the difficulty of getting consent.
It is the Secretary of State, not the landowner who must have regard to the benefit of the neighbourhood!
The Committee was being implicitly advised that the prospect of getting consent was good for the reasons given, but also implicitly being reassured that the fencing would have to satisfy a statutory test of “benefit to the neighbourhood,” that being a criterion to which the Minister had to have regard, in deciding whether to authorise a fence.
The Court of Appeal cannot be perverse or act against the public interest. It knew that the agreement the parties had come to, would have to face much public consultation in any application to the Secretary of State. The Secretary of States consent has never been sought.
Next time: We will see how the HCC explained the matter away for the many questions asked over the years.