The judgment of the Court of Appeal in Littlejohns and Littlejohns v Devon County Council and the Duchy of Cornwall, handed down on 6 May 2016, tries to settle the vexed question of whether rights of common can be acquired by prescription after 1970, over land which was already registered common land.
Tha background is as follows: Devon County Council (“DCC”) is the commons registration authority under the Commons Act 2006 for land in its area, as it was under the Commons Registration Act 1965. The Littlejohns family grazed cattle and sheep on Dartmoor for decades until the outbreak of foot and mouth disease in 2001. Back in the 1960s, the family had intended to register their rights of common over registered common land, but they made no formal application and so the rights were never registered. In 2010, and reliant upon transitional provisions in the 2006 Act, the Littlejohns formally applied to DCC to register a right to graze 224 livestock units on three parcels of registered common land owned by the Duchy of Cornwall. They claimed that these rights were prescriptive rights acquired by user between 1970 and 2001.
DCC refused the Littlejohns’ application, essentially on the basis that a right of common could not be created by prescription after 1970 over land already registered as common land under the 1965 Act. The High Court upheld DCC’s refusal, but granted permission to appeal to the Court of Appeal. By a majority, the Court of Appeal upheld the High Court’s order and hence DCC’s decision. Permission to appeal to the Supreme Court was refused.
For detailed analysis of this judgement see PannageMan
