The Case for Hampshire County Council – PART 158

The strangeness of the commons issues does not end there, for when the CCC set out each of his determinations concerning the Rights claimed by the various applicants for registration, he did so entirely in the terms of the Rights Section of the register without indicating anything concerning the Land Section.

Mr Whitfield appealed against the CCC’s decision to the High Court where Brightman J reasoned,
"The Chief Commons Commissioner found as a fact that there was a right of common of pasture over the whole of the Common attached to each of the tenements, whether customary, freehold, copyhold or leasehold, mentioned in the survey of the unpartitioned manor made in 1636.  He interpreted the 1637 partition is having the effect of attaching to each of the tenements in the two-twelfths parts of the manor* the like rights of common over such two twelfths and so also in respect of each tenement in the ten twelfths parts of the manor.   There are no sufficient grounds for challenging the finding of the Chief Commons Commissioner that in ancient days the manorial tenants enjoyed rights of common, both before and after the partition."

The Appeal before Brightman J. was simply not concerned with the Land Section.  The Case was dismissed.

However, Mr Whitfield then appealed the Rights of Mr Connell to the Court of Appeal.  He did not appeal Mrs Cook’s Rights because, as Brightman J. pointed out on Page 20, paragraph A, “there was no appeal on the manorial part of the Cook’s case.”  

However, the appeal was not heard but dismissed and seemingly compromised by a Consent Order dated 24th May 1978, in which it was agreed:
(i) that Mr Connell agreed to release his rights of common over the 80 fenced acres owned by Mr Whitfield,
(ii) the County Council agreed not to pursue its provisional registration of the said area as common land and
(iii) the Respondents and further agreed to support any application by Mr Whitfield to the Secretary of State, under section 194 LPA 1925 i.e. for permission to erect the pre-existing fences.

Next time: to be continued.

 * Brightman J. at 6C.  These conclusions are at the foot of page 6 of the Decision of the CCC.  Note that the CCC also found at page 4 of his decision that “the land comprised in the Register Unit I identify as that referred to in the allotments of Brocas’s ten twelfths and as containing nothing included in the Fauntleroy allotments.

All 'TCHCC' Parts so far