The Battle for Broxhead Common

The Case for Hampshire County Council – PART 17

1. It is settled law that commoner’s may not ‘let, lease or lend’ their rights of common. Also, all the other commoners would have had to agree to dispossess themselves of their rights to extinguish them. If this were not the case, then common land would have ceased to exist at all.
    
2. The Commons Commissioner’s Decision is final at the date of registration, in this case that was 24th May 1978. His decision had been tested in the High Court and confirmed by the Court of Appeal. His Land Decision (1) says:
   Broxhead Final LAND Decision 197417072020 (2)
3. The Broxhead Commoners Association which had been created by John Ellis on 6th June 1968, was fighting for the whole common to be registered. There was no way they would have agreed to compromise the Decision by letting the land to anyone, let alone the County Council, but they were never asked for their consent!!!
    
4. HCC published the narrative that, there were only two commoners with rights east of the B3004, one had been excluded by the High Court. The remaining commoner, Mr Connell sold his rights over the 80 acres which extinguished them. All other commoners had rights over the other side of the B3004 only.!!
    
5. Broxhead Commoners could never understand their sudden loss of rights and access over the 80 acres which had existed for centuries.
    
6. Nevertheless, HCC carried on regardless of the local objections by renting the remaining 100 acres from the ‘said landowner’.
    
7. In fact, there are no pre-registration title deeds to show any ownership of the common land. On the contrary in fact.
    

NEXT TIME: False information can be conveyed as effectively by omission rather than written or spoken. The Commons Commissioners consider ownership of the common land.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 16

1. Until the year 2000, Hampshire County Council had an arrangement that made East Hampshire District Council responsible for Rights of Way in the District.  So, I wrote to the Leader of the District Council Barry Hopcroft.  His reply came on:
    
2. 2nd May 1990. In which he says, ‘bridleways on the common have been something of a problem since the landowner fenced parts of it.’
   1990 Hopcroft Leader EHDC letter to MC23082020
    
3. 24th  May 1990, I wrote to Sir James Scott, Lord Lieutenant of Hampshire, again asking how we could maintain our rights in law when the Authority who should enforce it refuses to do so?
   MC to Sir James Scott May 1990
    
4. This of course was the nub of the problem. In not abiding by the Schedule to the dismissal of the case from the Court of appeal Hampshire County Council were not only in contempt of court but promoting misleading and false information.  When a significant County Council such as Hampshire make a mistake and keep repeating it, other government bodies will tend to accept it, especially when the waters have been so cleverly muddied.
    
5. 7th  November 1990, the incoming County Bridleways Access Officer for the BHS, Mrs Grace Ritchie wrote to HCC’s David Pryke
   Grace Ritchie to David Pryke
    

Next time: HCC had ignored and broken the law in more ways than one and have incriminated themselves yet again.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 15

1. In the meantime, I wrote to everyone I could think of who could help to restore the lost link of the bridleway.
    
2. 6th and 29th October 1989, I receive replies from Sir James Scott, Lord Lieutenant of Hampshire. He says he remembers the problem from his involvement with Rights of Way and hopes that the Nature Conservancy Council will not be too selfish and narrow minded over their common!!??
   Scott Sir James of Rotherfield14092020.pdf 29 OCT 1989
   Sir James Scott 6.10.1989
    
3. 20th February 1990 I wrote again to my MP Michael Mates asking for help in getting a bridleway on to Broxhead Common from the C102. A reply came to him on:
    
4. 7th March 1990 from the Assistant County Secretary, Edward Mason in which he says: “The only stumbling block in the way of achieving this additional bridleway is the Nature Conservancy Council” !!
   Broxhead Correspondence 1980-90_0009.jpgEDWARD MASON RE NCC
    
5. 26th April 1990 Christine Witherby, one of the local horse riders wrote to Bill Bide about the lack of a bridleway link or circular ride on Broxhead Common. He replied on:
    
6. 26th April 1990. He says the NCC say there is no reason why a route should not be cleared on scientific grounds, but they do not wish to encourage horse riders on to the common which is sensitive in ecological terms! 3
   Bide to Witherby re NCC & Broxhead_1990 0002 (5)
    

Next time:  It seems the Quangos are taking control and over-riding democracy with the support of the local councils?

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 14

1. Hampshire County Council were still hell bent on obtaining the Diversion Order for BW4 and BW46. They would make yet another Order in 1990.
    
2. This would be their third attempt to regularise diversions caused by the unauthorised fencing.
    
3. Could we restore our bridleway link this time? It was now more important than ever because in 1988, the ‘landowner’ had locked the gates to the only path which everyone used between the Forestry Commission fence and his unauthorised fencing in order to reach the other two bridleways on the common. That is two out of the 23 original tracks remember.
   1989 letter Headley Wood closure of the only access to BW46 Broxhead Common19092018
    
4. Gillian Potter, BHS County Chair at that time, wrote to Mr David Pryke, HCC Rights of Way Officer, pointing out that her predecessors Brigadier Eggar and Col. Archer-Shea had also been concerned about the need to rationalise the bridleways system in the area.
   Gillian Potter to Pryke
    
5. 7th February 1989, a reply comes from Assistant county secretary, Edward Mason, sending her a copy of the Court of Appeal Order, and telling her the 80 acres is not common land!!?? This is misleading and false information. He follows up with another letter dated:
   Mason to Potter 1989
    
6. 28th March 1989 shortly after their doomed Public Inquiry, in which he says, “Maureen Comber has been advised to work up a case for a Creation Order for the bridleway link.”
   HCC Edward Mason 1989 letter06092020
    
7. Is it just the ‘said owner’ as well as East Hampshire District Council’s Rights of Way Department that is frustrating the attempt to rationalise the bridleway network over Broxhead Common?
    

Next time: Apparently not. There appears to be another dissident.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 13

1. 4^TH September 1989. The Decision for Hampshire County Council’s Diversion Order is given by Planning Inspector, Captain G. F. Laslett CBE C Eng RN.
   1989 Planning Inspectorate 198830082020.pdf LASLETT
    
2. It is interesting to note the references to ‘the farmed land’ rather than the farmland or demesne lands of the farm, in his report. Paragraph 5 refers to “the ‘said owner’ leased the other land crossed by bridleways to Hampshire County Council”, rather than ‘the owner’, or to the ‘leased land’ rather than ‘common land’.
    
3. Paragraph 10 confirms that HCC were unable to find any record of the 1965 Public Inquiry where part of BW4 had been downgraded to FP.!?
    
4. Paragraph 12 refers to the gates which have been a constant problem for obstruction. There are at least half a dozen of them in this relatively small area.
    
5. Paragraph 13 reveals the frustration felt by The British Horse Society because of the unhelpfulness of the East Hampshire District Council in removing obstructions!
    
6. Paragraph 20/21 confirms a healthy mutual regard between the Hampshire County Council’s Principal Rights of Way Officer and the Objectors, as he finishes by DECIDING NOT TO CONFIRM THE ORDER.
    

NEXT TIME:  Is it third time lucky for Hampshire County Council’s Diversion Order?

The Battle for Broxhead Common

Says Maureen:
“I think this must be the biggest Government cover up ever, of a crooked Council that steals the peoples common land!  Disgraceful.”

The Case for Hampshire County Council – PART 12

1. Because of the continuing objections to the Order, Public Inquiry took place on:
    
2. 21st March 1989. The Report of the Principal Rights of Way Officer for HCC makes interesting reading, if only because at paragraph 8 he says, “At that time, Hampshire County Council, as lessees of 100 acres of Broxhead Common, were in the process of implementing part of an Order from the Court of Appeal dated 24th May 1978.”
   Bill Bide Principal ROW Officer HCC March 89 PI15072019
    
3. This is misleading because the CA had ordered nothing other than the dismissal of the case from that Court. However the Schedule, that is the agreement the Parties had come to, was not being implemented correctly. HCC were cherry picking the parts they wanted to and ignoring the instruction to apply to the Secretary of State for the fencing. However, as we would see, if a story is repeated often enough and particularly if it is by a government authority, the inclination is to accept it as the truth. Time after time HCC would say that they had been ordered to remove the 80 acres of Broxhead Common, by the Court of Appeal, or the High Court, although very recently that has changed slightly to the Chief Commons Commissioner! That is FALSE INFORMATION, but we didn’t know that then of course.
    

Next time: The Planning Inspector gives his decision.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 11

1. It should be remembered that the unauthorised fencing obstructed some 23 tracks used by horse riders over Broxhead Common, as noted by Cllr. John Ellis to the 1965 Public Inquiry about Rights of Way.
   Broxhead Correspondence 1980-90_0023
    
2. We were advised by HCC, that if we were seen to be reasonable and not object to the Order, then there was a good chance of obtaining the missing link from the C102 to BW46, by upgrading FP54 to bridleway. This advice had been tested before during the 1970’s, when the landowner had applied and succeeded in getting the bridleway diverted because he could just about see it from his house! The advice had not worked then and would probably not work now, but we did not wish to be seen to be unreasonable.  So, ignoring the continuing discontent from Headley Parish Council, in:
    
3. 1987 another Order is made by Hampshire County Council to divert BW4 and BW46.
    
4. Sadly, it did not include our missing link!
    
5. Gillian Potter, BHS County Chair, wrote to Mr David Pryke, HCC Rights of Way Officer, pointing out that her predecessors Brigadier Eggar and Col. Archer-Shea had also been concerned about the need to rationalise the bridleways system in the area.
   Gillian Potter to Pryke
    
6. 7^th February 1989, a reply came from Assistant county secretary, Edward Mason, sending her a copy of the Court of Appeal Order, and telling her the 80 acres is not common land!!?? This is misleading and false information.
   Mason to Potter 1989
    
7. 23^rd March 1988, I wrote to Bill Bide explaining why I thought the missing link should be included.
   HCC letter from me 198806092020

 
NEXT TIME: The report of the Principal Rights of Way Officer for HCC to the Public Inquiry which followed makes interesting reading.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 10

1. 31st January 1983. When the proposal from Hampshire County Council arrived, to divert certain bridleways on Broxhead Common the response from Headley Parish Council is somewhat negative. But on:
   1984 HPC REJECT DIVERSIONS
    
2. 15th July 1983, minutes of the Rights of Way Sub-Committee of HCC show that the public and press were excluded from an item on commons registration because of the confidential nature of the business involved. It is difficult to imagine how anything to do with common land could warrant such secrecy!?
   CRA Secret meeting 1983
    
3. 30th January 1984, Headley Parish Council minutes again refer to their objection to the bridleway diversions, because of the unlawful fencing of the common.
    
4. It later transpired that Hampshire County Council had in fact made an Order promoting the diversion of the bridleways in 1982 but it was opposed and later cancelled because of a drafting error!
    
5. 6th February 1985, when queried by my Clerk as to the nature of the drafting error it appears that BW46 was shown on the plan as a footpath!
   Headley PC proposed diversion of BW’s on Broxhead Common
    
6. NEXT TIME:Another Order is made in September 1987.It had to go to Public Inquiry. The Objectors were, Headley Parish Council, The British Horse Society and Mrs M. C. Comber as Chair of Kingsley Parish Council, to name but three.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 9

1. Local people were by now not only puzzled, but frustrated and angry at the curious outcome, and on:
    
2. 21st January 1980, Headley Parish Council minutes how a rejection of the proposal for the sports ground and car parking on the common land.
   21.1.80 objection to Lindford sports ground on Broxhead
   6.5.80 Rec report
    
3. 7th July 1980, the minutes of the Planning and Amenities Committee for Whitehill record correspondence received from HCC, noting that a registration in Register Unit CL147 (Broxhead Common), of the register of common land has been modified. It does not say how, why, or what that modification is. As previously noted, the relevant minute books are missing.
    
4. Bill Bide, the Principal Rights of Way Officer at HCC, lets it be known that they are proposing to make an Order for the diversions of BW4 and BW46 on Broxhead Common. In reply the Chairman of Headley and District Bridleways Group, Guy Robinson writes:
    
5. 22nd November 1982, “The real reason is quite obvious; it is an attempt to obtain retrospective consent for the unpermitted diversion of a bridleway which was affected by the fencing of a large area of Broxhead Common.”
   Guy to Bill Bide Principal ROW Officer HCC Nov. 198215072019
    
6. Guy eventually became the Chairman of Headley Parish Council.
    

Next time: The proposal to divert the bridleways arrives and the Rights of Way Sub-Committee of HCC exclude the public and press!??

The Battle for Broxhead Common

The Case for the County Council – PART 8

1. 4th May 1979 is the date of the Final Determination Notice (FDN) sent to Whitehill Parish Council. It shows the whole common is registered.
   Whitehill FDN
   Unfortunately, the Parish Council minute books for 1976-1979 are missing so it is not possible to see if there was any discussion about Broxhead Common.
    
2. 1st August 1979, the land section of the Commons Register notes that, “The land registration at entry No.3, which was disputed, became final on 24th day of May 1978…. with the exclusion of 80 acres.” That is not correct because on that day and at that time the Chief Commons Commissioner’s Decision was affirmed as stated in the Consent Order. The same Consent Order which HCC says is ordering them to extract the 80 acres!
   Broxhead Registration LAND FDN 22082020
    
3. They have become so obsessed with their ‘settlement’ that they seem oblivious to the actual legal protocol.
    

It now appears that the land is being stolen from the Commoners’ and as a Public Amenity.

Next time:  Guy Robinson, the Chairman of Headley and District Bridleways Group writes a scathing letter to HCC’s Principal Rights of Way Officer.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 7

1. Now the MOD are becoming curious and on:

2. 30th March 1979, The Property Services Agency’s (DOE), Dick Stilwell, writes to the County Secretary asking for a copy of the final Rights after the appeal.

MOD asking questions ’79_0001 (4)

3. 3rd April 1979, a reply comes from Edward Mason, Assistant County Secretary. He says that no notification has yet been received from the Chief Commons Commissioner. This must be false because the FDN’s state that the matter became final on 9th January 1975 and/or 24th May 1978 and were signed off on 18/19th December 1978.

MOD asking questions ’79_0002 (2)

Next time: Another Final Determination Notice and more recorded false information.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 6

Hampshire County Council insist that the Schedule to the Order for the dismissalofthecasefromtheCourtofAppealisanorderperse. Infact,it is a commitment by the parties to adhere to the Schedule which is permitting the dismissal of the case from that Court. This means the Schedule must be complied with, in its entirety.

So, are HCC in contempt of Court?

27th June 1978, minutes of the Land Subcommittee show that HCC is pressing ahead with its ‘Settlement’, even though no consent has been sought from the Secretary of State.
Broxhead Registration RIGHTS COOKE22082020 (1)

18th December 1978, the Final Disposal Notices (FDN) are issued by HCC. When I made enquiries more recently as to why there appeared to be more than one Final Notice I was told that the first date, 24th May 1978 was the date of registration and the second, 18th December 1978 was the day it was sealed.
Broxhead report of 22.6.78 COMPLETION OF LEASE (2)

The links show the FDN for Connell in which it can be clearly seen that ‘the saidland’referstothewholecommon.3 TheRightsRegistrationSheetfor Mrs Cooke has not recorded her grazing rights over the land owned by Mr Whitfield? (for which see CCC’s Final Decision (2) Rights, page 17/18)?? 4
FDN CONNELL 19.12.1978 18

The CCC has made no alteration to his Decision other than dates, one for Land and two for Rights.
Broxhead Registration RIGHTS COOKE22082020 (1)
This is because Brightman}. left him to make any alterations, he thought necessary. However, none were needed because the very fact that common rights had been found on the east side of the common confirm that the whole of the common is subject to rights of common. Not that proof was needed, since rights of common existed before 1925 and therefore the land was protected by sec.193 and 194 LPA 1925.

Mr Whitfield has no Rights because he has claimed ownership. His Land FDN

simply refers to the five small pieces which have been omitted as stated in the Land Decision (1). They are outlined in red on a plan initialed GDSl & GDS2. I have never managed to find a copy of that plan. Instead there is a much larger plan, C, drawn by HCC to show the 80 acres extinguished.

The question must be asked how and why in the circumstances the still unauthorised fencing remains as if Mr Whitfield had won his case in the Court of Appeal when in fact it was never heard?
Pages from FDN WHITFIELD 1978

Next Time: Another FDN and the MOD asking questions

The Battle for Broxhead Common

The Case for the County Council – PART 5

It is essential to remember how the Registration of Common Land works. When the Commons Commissioner’s decision becomes final, as it did in this case on 24^th May 1978; the relevant Registration Authority must record that decision and draw up any plan or map.

So, what was the Decision as stated by Hampshire County Council?

They have said at various stages throughout the years:

• The Chief Commons Commissioner had split the common in half and all the rights except two on the east side, were relevant only on the west side of the common. FALSE
  CCC to Hadfield13082020
• The High Court had extinguished one commoner, leaving Mr Connell as the only commoner with rights. FALSE
• Mr Connell had sold his rights over the 80 acres thereby extinguishing the common land. FALSE
• The High Court had ordered them to remove the 80 acres. FALSE
  CCC to Hadfield13082020
• The Appeal Court had ordered them to remove the 80 acres. FALSE
• The Chief Commons Commissioner had made a mistake. FALSE
• The Final Disposal Notice removes the 80 acres. FALSE
• They even drew up a plan to show the 80 acres outlined in red as removed!!
  Bordon Herald 2013 Broxhead 15072019

It appears that Section 7 & 10 CRA 1965 have been totally ignored. That states the Commons Commissioner’s Decision is conclusive at the date of registration, in this case it was 24^th May 1978. This is the date that Mr Whitfields appeal was dismissed from the Court of Appeal.

 Are HCC inciting FRAUD or are they engaged in a plot to STEAL the land?

NEXT WEEK: We will look at the Final Determination Notices (FDN)

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 4

Of course, the Broxhead Commoners’ were most concerned by the strange turn of events and in:

July 1978 issued a press release.  It explains that after the High Court judgement in 1977, Mr Connell had resigned from the BCA. This is important because Mr Connell was at the hearing of the Court of Appeal by which time he was probably in receipt of a large amount of money from Mr Whitfield, who paid for his Rights over the 80 acres in order, he thought, to extinguish them! Hampshire County Council had made themselves a co-respondent to this!  Is this incitement to fraud by the parties present?

19^th October 1978, one of the commoner’s, a Mr Nicholson even wrote to the Prime Minister asking why his rights had been curtailed and why the fencing remained. ¹ There followed much correspondence between the Commons Commissioner’s Office, the Department of the Environment and the Nicholson’s. The problem seems to have been that the Officers had no idea that the commoners were being told by HCC that the Chief Commons Commissioner had split the common in half, and their rights had been restricted, and because the fencing was unauthorised they did not know of that either. They had obviously assumed, as they would, that the Chief Commons Commissioner’s Final Decision had been faithfully transferred to the Commons Register by Hampshire County Council.   

Eventually Mr Nicholson received the letter from the DOE telling him that the whole area was registered common land and his rights extended over the whole of it.

This confirmation was the reason why the commoners did not resort to Judicial Review.

Nicholson from DOE

Broxhead, Nicholson to Prime Minister16082020

Broxhead reg to Mrs Nicholson LETTER24022020

Next time: We will look at what Hampshire County Council had made of it all.

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.

The Battle for Broxhead Common – 2 The Case for Hampshire County Council – Fact and/or Fiction So, I hear you ask, what went wrong? The Commoners had won their case both in the High Court and Court of Appeal. The neighbouring Parishes of Kingsley and Headley had all objected to the proposal that the fences around the 80 acres should remain. So, what happened next?

There is nothing in the Parish Minutes to record what happened next except that a great number of individuals were asking why the fencing remained. Not least of all the Broxhead Commoners. The BCA had raised large sums of public money by donation to pay for lawyers to fight for their cause. Hampshire County Council had agreed to pay half.
Broxhead ROW Sub 9th Jan 1976 share expenses

Despite the negative responses to the letter from the County Secretary dated 13th September 1977 (See Part 1), and the report of HCC’s own Conservation Officer on 12th January 1978, on:
HCC Jim White report24082020

20th April 1978, Rights of Way Sub-Committee minutes of HCC record that an overall settlement of the dispute was being negotiated and HCC would lease the unfarmed area of Broxhead Common under the Wildlife and Countryside Act 1949. This was just one month before the Court of Appeal hearing. !!
Broxhead Common ROW Comm 20.4.78

24th May 1978, The date of the Court of Appeal hearing. By this time, the Broxhead Commoners are now weary and financially embarrassed after fifteen years of fighting for their common. They know they have made their case and won it, so they decide to leave it to HCC to attend after all Mr Connell and Mrs Cooke, both commoners, will be there.

The hearing at the Court of Appeal is dismissed on the terms of the Schedule, that is the agreement the parties have come to for the dismissal of the case from out of that court. Had HCC been planning to pervert the course of justice?

Next time: 22nd June 1978 Report of the County Secretary to the Lands Sub-Committee

THE BATTLE FOR BROXHEAD COMMON. THE START OF IT ALL — THE STORY OF BW54

The start of the Battle.

This Tithe Map is freely available to anyone who wants to go to their local Records Office or National at Kew.

This is hugely important. It shows Broxhead as having no Proprietors and used by Sundry People.

It is a documented Act of Parliament.

This proves that there was no trace of an owner at that time. In any case under the Commons Act 1876 “an owner other than a lord seems to merely take his place alongside the commoners as one of the persons representing two thirds in value of affected interests…” the other is the local authority.

The Chief Commons Commissioner gives a detailed account of the conveyances covering various parts of Broxhead Common and concludes: “On the evidence so far reviewed I am satisfied that there was a right of common in the soil and a right of common of pasture over the whole of the common attached to all the tenements, whether freehold, copyhold or leasehold mentioned in the survey of the still unpartitioned manor in 1636. “

See links to the CCC’s final LAND decision (1) and RIGHTS decision (2) in which I have highlighted important paragraphs.

The RIGHTS decision is 22 page document. Very detailed so the crucial bits are often missed.

BROXHEAD COMMON final decision RIGHTS highlighted- WHITEHILL AND HEADLEY NO.CL.147 (1)

Broxhead Final LAND Decision 197417072020.pdf HIGHLIGHTED (2)

1. It was a damp grey day on the 8th October 1971 when my family and I moved to The Old Cottage at Frith End; but I was not complaining. Earlier that year we had been participating in a transport study for the World Bank in East Pakistan when the country had undergone a coup during its transformation to Bangladesh. Never had we been more pleased to see the RAF land on that pock marked runway at Dacca and lift us back to civilisation.
    
   Only a couple of weeks after moving in, my husband was off to Korea until Christmas on a port study, leaving me to replace the bedroom floor after he had put his foot through the rotten boards, get the place rewired and, well you can imagine the rest. Eventually however I began to enjoy the surrounding countryside.
    
   Alice Holt Forest is just opposite on the other side of the narrow C96 from where I live. Cradle Lane (BOAT) about three hundred yards away up the hill, and at the Headley end of that is Broxhead Common.
    
   Little did I know that I was at the beginning of what would become a 40 year and more battle to regain the public rights of access to Broxhead Common, but for now suffice it to say that it consisted of approximately 180 acres of heathland on the East side of the B3004 with a further 220 acres on the west side which was owned by the MOD. In an article for the Daily Telegraph in 1895 entitled ‘Celebrities at Home in the World this Week’, the owner of Headley Park, a Mr Justice Wright, tells us as he lays on a fresh pipe, “you may walk ten miles in a line from his front door over heather alone”
    
   It was not like that when I moved here in 1971. I did not realise it then, but a battle had been raging since 1963 with local commoners after the previous landowner, a Mr Sefton Myers, illegally fenced in 80 acres of the common land on the eastern side of the road B3004, which crosses the open common land. The response from Hampshire County Council under the Chairmanship of the Open Spaces Committee, on 8th December 1964, resolved to protect Broxhead Common against unlawful encroachments, including instituting proceedings under Section 194 LPA 1925.1
    
   The MOD had after some dissent acknowledged the public interest for the part of the common under their ownership to the west of the B3004. At the beginning of the 20th Century the Secretary of State for War purchased the western half of the common as an “appendage to Bordon Camp”.
    
   The Commoners at that time were genuinely concerned at the interference with the grazing rights by the exercise of Cavalry and heavy guns and artillery on the common and appealed for help to the Headley Parish Council. Various incidents are recorded of fence cutting and encroachments, which culminated in a confrontation between the Military Authorities and the Commoners on Saturday afternoon 16th November 1907.
    
   A demonstration was staged, and ten Commoners under the leadership of Mr A. J. Harding, Messrs Caine, Courtnage, Fullick, Hellier, Lovegrove, Lawes, Piggott, Lee and Whiting, assembled with horses and carts to carry away bracken, furze and turf for fuel, and others brought their cows for grazing. Mr Hellier supplied a barrel of beer and he was placed in charge of it.
    
   A mounted Police Constable with two others on foot appeared, and the following statement was read out to the assembled company:
    
   “To Mr Albert J. Harding and whosoever it may concern, Whereas it appears that Mr Baldwin, War Department Lands Warden did interfere with certain Commoners when exercising their Rights over Broxhead Common – this is to acknowledge on behalf of the War Department that the said Mr Baldwin did so act without authority and was at the time, owing to an error on his part, under the impression that the said Commoners were on War Department free-hold property. The War Department do not contest the right of the Commoners to exercise their ancient rights over Broxhead Common.”
    
   The matter was confirmed in the Final Decision of the Chief Commons Commissioner dated 22nd November 1974, “The common is crossed by a road leading from Lindford in the north to Sleaford in the south. The portion of the land to the west of this road has been registered in the Ownership Register Unit as being in the ownership of the Secretary of State for Defence.”
    
   
2. However, I am getting ahead of myself. On 1st December 1955 a Royal Commission on Common Land had been appointed to “recommend what changes if any are desirable in law relating to common land in order to promote the benefit of those holding common rights, the enjoyment of the public or where little or no use was made of such land, its use for some other desirable purpose.” To this end HCC had commissioned Dr. L. Ellis Tavener to research and record all the common lands of Hampshire. His report eventually appeared in book form entitled “The Common Lands of Hampshire”. Based on his findings HCC provisionally registered the whole approximately 400 acres of Broxhead Common under the 1965 Commons Registration Act.
3. The Hampshire County Council advised Headley Parish Council that the best way to prove the land was common land was to find the commoners
4. Headley Wood Farm which lies adjacent to Broxhead Common, was owned sold in 1962 along with 200 acres of Broxhead Common, by Mrs Patricia Barnard the widow of C.W. McAndrew, McAndrews had lived adjacent to the common land for sixty years, first as owners of Headley Park before moving to Headley Wood Farm in 1947. Neither property was possessed of the common land, according to the sale catalogues of 1926 for Headley Wood and 1821, 1869 for Headley Park, though both are recorded as having Rights of Common. In fact, the 1847 Tithes Apportionment Act records the common as, ‘having no proprietor and used by sundry people’.  
5. However, when it was sold to Siegfired Sefton Myers the MacAndrews made it clear that Broxhead had always been an open public common and when Mr Myers began fencing in the 80 acres the following year, they supported the commoners in their fight to retain their Rights.Headley Parish Council also helped, and on the eve of a decision to join the Commons Preservation Society (now the Open Spaces Society), Hampshire County Council (HCC) agreed to help also.
6. The local miller, Mr John Ellis, who was also Chair of Headley Parish Council, as well as being a commoner. He set up the Broxhead Commoners Association (BCA), on 6th June 1968, to do everything possible to ensure the whole common was registered. He was particularly interested in preserving its wildlife qualities and public access.
7. In 1970 Mr Myers sold Headley Wood Farm and the eastern side of the common to the present owner Mr Anthony Gary Peter Whitfield.
8. Mr Whitfield and one or two other local landowners objected to their parts of the common being registered under the Commons Act 1965.
9. In December 1973 John Ellis writes to the BCA “The successful stand by our Association in conjunction with the Headley Parish Council and the Hampshire County Council in preserving most of Broxhead Common to date, is constantly having to be watched, and I am daily in touch with those concerned. The owner of the Eastern side in the Parish of Headley is trying desperately to influence some of the Commoners to change their minds with an offer of a piece of Common land for a Football Field, and has been instrumental in setting up a “Working Party”. This is not repeat not part of our association and is acting against our aims and the long-term interests of the local people. This premature offer of course could be interesting were it not for the conditions attached, which have now been officially made known to me. They are in short:
   1. The Commoners give up their rights.
   2. The whole of the Common except a narrow strip, to be allowed to be fenced with barbed wire
   3. That it be allowed to extend the illegal fences, enclosing about 85 acres of common to take in a further 100 acres
   4. That all gorse, heather, trees, wildlife and flowers will be destroyed to make way for Agricultural Development.
      

      WE CANNOT AGREE TO SUCH CONDITION
      

10. Because of the five objections by local landowners, the Commoners fight to register the land proceeded first to a twelve-day hearing before the Chief Commons Commissioner which took from 26th April to 14th October 1974, in Winchester and London. The Chief Commons Commissioner, Mr G. D. Squibb, made many changes to the Rights registrations discarding about half of them but still leaving 20 commoners registered
11. Perhaps I should explain here that Rights of common are property rights which are attached to property rather than an individual.
12. The Chief Commons Commissioner delivered his interim Decision on 26th August 1974, leaving time for further comment before issuing his Final Determination on – 22nd November 1974. He stated in his Land decision Broxhead (1) that the land the subject of the dispute should be registered for reasons given in his Rights Decision.(2).
    Of interest is the statement he made on Page 14 of that document; He says:“Some witnesses spoke of act done on the western part of the common but denied having seen them on the eastern part. I do not believe this evidence, but whether it is to be attributed to faulty observation or recollection or to an over-enthusiastic desire to help Mr Whitfield’s cause seems to be a matter on which it is unnecessary for me to express an opinion.” 
13. Mr Whitfield appealed this decision to the High Court on 24th March 1977. The Judge, Brightman J., decided against him, at the same time as discarding one other commoner, a Mrs Rosemary Cooke of Trottsford Farm and confirming a Mr Connell as having rights over the whole of the common, referred to as ‘the said land’ being the land in dispute. Brightman J makes no order for altering or changing the Register in any way, and after confirming the Chief Commons Commissioner’s decision leaves him to “put his law right” and alter as he sees fit. According to the CCC’s notes, the only alteration he actually made were dates “for land entry No. 1 and Rights Entries 1 & 12. The dates of the rest being unaffected by the appeal.” There was much discussion about the ‘costs’ and whether these could be appealed. Brightman J. says he does not think it will take awfully long for the Court of Appeal to form a decision about this if the parties decide to go there, and so grants leave of appeal.
14. 24th May 1978 is the date of the Court of Appeal hearing. The Court issues an Order to which is attached a Schedule. The Schedule is an agreement between the parties, that is, Mr Whitfield, HCC, Mr Connell and Mrs Cooke. HCC say it is in this Schedule that the Court of Appeal instructs them to remove the 80 acres. I would not find out for another forty years that Brightman J. had been right to say the CA would not take long in their deliberations, for in fact the only Order that they issued that day was for the dismissal of the case from out of that Court. They had not sat or considered anything at all. 

NEXT TIME: I JOIN THE HEADLEY AND DISTRICT BRIDLEWAYS PROTECTION GROUP

The Battle for Broxhead Common – Introduction

In 2017

I made application under sec.19 Commons Act 2006 to correct the Register of Common Land because of ‘mistakes’ made by the Commons Registration Authority, which in this case was Hampshire County Council. (HCC).   I knew that because of the ‘interest’ they have in Broxhead Common the matter could not be decided by them but would have to go to the Planning Inspectorate.

 It took weeks to get the application in because however carefully I drew the line around the 80 acres and even though the line is already there on the OS maps and plans, it was never good enough.  However eventually in August it was accepted. 

There was one objection and that was from Mr A. G. P. Whitfield.

23^rd January 2019

is the date of the letter from the Planning Inspectorate informing me that HCC have referred the matter to them.  They offered a Hearing or Inquiry.  Because I am awfully hard of hearing and the evidence was clear, I chose to have the matter dealt with by the Inspector appointed, in this case Mr. Martin Elliott.

The decision came on 29^th November 2019.

The Inspector appeared to have taken HCC’s explanation verbatim and dismissed all the other evidence and comments from supporters as irrelevant. He had also badly misled himself by saying Broxhead Common had only been provisionally registered and the fact that the land had been unlawfully fenced has no bearing on whether a mistake was made in making an entry in the register.

This decision was so misconceived that I decided it must be Judicially Reviewed.  I set the ball rolling with my lawyers at the beginning of December 2019.

25^th March 2020. 

The request for Judicial Review was acknowledged by the Court.  The Defendants being Hampshire County Council, The Planning Inspectorate and as an Interested Party, Mr A. G. P. Whitfield.

5^th May 2020

My application for Judicial Review came before Thornton J. who promptly refused it.  The grounds are that my ‘real complaint seemed to lie with matters over 40 years ago when the land in question was not finally registered as common land having only been preliminary registered as such’  More false statements on which she decides that Martin Elliott has not made a mistake!  I really need a chance to argue and show why these statements of facts are wrong. 

On pain of threatened costs of £30,000 from HCC, I went ahead and asked for a renewal hearing for my application for Judicial Review.  I also requested that a Planning Judge would be necessary for the complexities of the matter to be properly understood.  I had also been dismayed that the problem of Broxhead Common’s missing 80 acres was considered too old to be of much relevance.  To me, as an octogenarian that felt like discrimination.

So on 23^rd July 2020

my application for renewal for Judicial Review to be made came to Court as a hearing.  The Covid19 crisis has forced the Courts to update their technology so that now Hearings can be held via Skype. A good friend lent me her earphones complete with speaker; and I wondered how it would all work. 

On the day at the appointed time the honourable judge appeared.  Apparently, nobody but the lawyers could speak.  That should not be a problem should it?

First the equipment was not recording and after a short delay to sort that out she pointed out that the bundle numbers did not match the electronic ones so please could the lawyers make sure this was corrected in future.

It turned out that she was a Family Court Judge rather than a Planning judge as we had requested.

It all started quite well with the confirmation that the Chief Commons Commissioner’s decision became final on the 24^th May 1978 when it was dismissed from the Court of Appeal and that the Schedule to the Order for dismissal was not an Order from the Court as we had been led to believe all these years.  Now however HCC were saying that the Chief Commons Commissioner had made a mistake!

In the last five minutes of the hearing, even though the Judge had said more than once that it was complicated, she decided that what had been done would have been done anyway and refused me Judicial Review.  However, she did agree that Hampshire’s costs were way over the top and awarded them only £17,000.  Oh well I cannot take it with me.

The only other way to get the evidence out there and to prevent some other poor soul from having to suffer decades of injustice in the future, is to tell the tale of how to steal a common aided and abetted by your local council.  

I will be serialising the Story of the Battle for Broxhead Common from the beginning of the problems in 1963 when the owner of Headley Wood Farm, started fencing in the 80 acres of Broxhead’s common land, for it surely did not go unnoticed at the time and has been a cause of discontent ever since.

Broxhead Common has been identified as common land since time immemorial.