Grazing, piscary, turbary and estovers

For a considerable period of time, there has been an issue as to whether claimed rights of common by prescription could be registered over existing registered common land by virtue of transitional provisions in the Commons Act 2006.  There was no clear position articulated by the Government in the debates in Parliament, the textbook writers have been equivocal (although tending to the view that they could be registered) and the DEFRA guidance has been similarly non-committal. For decades, the Littlejohns have grazed livestock on land on Dartmoor owned by the Duchy of Cornwall.  They did not register any grazing rights under the Commons Registration Act 1965.  However, with the enactment of the Commons Act 2006 (and relying upon the transitional provisions and Devon’s status as a pilot area), they applied to register claimed grazing rights said to have been created by prescription over three parcels of Duchy land already registered as common land.  The County Council concluded that a right of common could not be created by prescription after 2 January 1970 over land registered as common land under the 1965 Act.  The Littlejohns, supported by the National Farmers Union, challenged that decision by way of judicial review. Mrs Justice Lang has today concluded that the County Council was correct.  She did however grant permission to appeal. Stephen Whale of Landmark Chambers successfully represented Devon County Council. For a copy of the judgment, click here.