"Please help the people of this neighbourhood to regain what is rightfully theirs and the protection of this ancient common under statutes which appear to have been deliberately bypassed."

Says Maureen Comber

Broxhead Common fraudulent removal of common land from the Register of Common Land - CRA 1965

Thank you for your letter dated 23rd July 2013 in reply to mine of 9th July 2013.

I have tried to be as clear as I can be, in explaining why Hampshire County Council have acted fraudulently by falsely representing the facts of the matter concerning the registration of common land at Broxhead, Headley, Hants and by failing to disclose the correct documentation, and to transfer in full the decision of the Chief Commons Commissioner to the Register Sheets.

However I know how intricate the Law of Common Land can be and it may help if I comment on the points you are making. Therefore responding to your letter as written:

Para 1 “…it is clear from the ruling of the Commons Commissioner dated 22nd November 1974, that not all of the area was registered as common land. In fact over half of the claims were refused by the Commons Commissioner.”

It seems to me that you may be confusing the two decisions made by the Chief Commons Commissioner (CCC) for the Land Section and the Rights Section of the Register?

The Commons Act 1965 required that all common land should be registered, the rights of common over such land, and persons claiming to be or found to be owners. These made up the three separate sections of the Register. Section 1 - land found to be common land, Sec.2 - Rights of Common, Sec.3 - Ownership.

CRA Sec.7 confirms immediate registration of the common land if an objection is withdrawn after a period of two years and before an appeal is heard.

Sec. 10 confirms the decision is conclusively FINAL.

It therefore seems to me that when you state over half the claims were refused by the Chief Commons Commissioner you are referring to the RIGHTS section of the Register. Is that correct?

You can find the CCC’s decision with regard to rights by clicking here

The decision with regard to the Land section of the register may be found by clicking here

From this you will see that all of the land was registered save for the four small areas mentioned.

HCC are therefore incorrect when they claim the land ceased to be common land.

Para 2 – I note that it is now accepted that the whole area was registered as common land in accord with the decisions of the CCC. This was then appealed by Mr Whitfield. However at the High Court 1977, under Mr Justice Brightman it was found there was no point of law on which the Land section could be appealed, so he dealt with the Rights section only. The Land had therefore become registered common land by the decision of the CCC Land Section 22nd November 1974.

Brightman went on to find for the rights of one commoner over the land owned by Mr Whitfield, but dismissed those of the other claimant, Mrs Cooke.

However this was enough to confirm that there were rights of common over the whole of CL147. That was all that was required under the CRA 1965. The only reason the CCC had to go into such detail was because Mr Whitfield was objecting to the registration of the Land and Rights, so further research was entirely for his benefit rather than any requirement by the statute.

However Mr Justice Brightman, having made his decision did not alter the Register. He left this to the CCC to do.

It is interesting to note a comment by the CCC on page 14 of his Rights decision letter, he says: “Some witnesses spoke of acts 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.”

He then altered the register to give Mrs Cooke rights on the west side and also grazing over the land owned by Mr Whitfield. Pages 17/18 of the Rights decision. However HCC did not transfer the latter information to the register sheets! Why?

This meant that there were two commoners still with rights over Mr Whitfield’s land. It therefore was of no importance whether Ernest Connell released his rights to the 80 acres or not, since grazing rights would apply to the whole area of common land by the other 22 registered commoners as well as those for Mrs Cooke.

You go on to say “The land was ordered by the Court of Appeal to be removed from the Commons Register.”

I see no documentary evidence of this? The only thing the Court of Appeal ordered at the hearing in May 1978 was the dismissal of the case from ‘out of that Court.’ The agreement reached between the parties to enable its withdrawal was the Schedule of agreement for the dismissal of the case and certainly not an order of the court to implement their agreement. Since the case was withdrawn and no evidence heard, the Court was not in a position to order anything and certainly not the removal of any land from the register. In any case the appeal was concerned with the RIGHTS section only, had it been heard, and not the Land registration which was already confirmed by the CCC’s decision 22nd November 1974.

Sec.10 CRA 1965 provides that under this Act registration of any land as common or village green shall be conclusive evidence of the matters registered as at the date of registration.

Para. 3 - It is therefore not a matter of disagreement with the ruling of the Court of Appeal but a contention that the law has not been observed by Hampshire County Council as the Registration Authority. The Court of Appeal permitted the withdrawal of the case on the terms of the Schedule agreed between the parties, because it knew that as Registered Common Land it was protected under sec.194 Law of Property Act 1925 and sec.30 CA 1870 and therefore permission would need to be sought from the Secretary of State for the fencing of 80 acres.

If this was not the case there would be no need for the Schedule to state that Hampshire County Council would support an application by Mr Whitfield for the fencing to the SOS, would there?

Para 4 – I do not know what paper work you have reviewed before coming to your conclusion but find it strange that you believe the Schedule to the agreement for the withdrawal of the case from the Court of Appeal constitutes an order to implement the Schedule? But if it was, why was it not carried out to the letter and application for the fencing made?

I say it simply means that the Court were content for the case to be withdrawn subject to that agreement which would be subject to further permissions required under the statutes.

Hampshire CC’s letter to me dated 31st October 2012 states they were “instructed by the Commons Commissioner to remove this land from the register following a Court of Appeal Order. This was because the only holder of common rights released his rights of common”

I have shown this was not the case. I also say that under the law, the Chief Commons Commissioner had no jurisdiction to alter his final decision or make instruction for the removal of any common land from the register. I have seen no evidence that he did so. If you have such evidence I would be grateful if you would forward to me please?

I have also shown that the release of Ernest Connells rights of common were of no consequence.

Please note that HCC say that copies of the Court of Appeal Order and the Commissioner’s direction have been sent to me. I have to say that the Consent Order sent to me had page 3 missing. It is on this page that it is noted that the matter is withdrawn from ‘out of that court’. Without that page it may well look as if the Schedule to the agreement between the parties was indeed an order. Have you had sight of the complete document?

HCC say that the 80 acres ceased to be common land and therefore did not come under the jurisdiction of the Sercretary of State.

I see no evidence of this, on the contrary the whole of CL147 Broxhead Common is registered common land and 80 acres of it has been removed from the register of common land without authorisation from the Secretary of State. In the same context, the implementation of the Schedule to the Consent Order for the withdrawal of the case from the Appeal Court, is ultra vires because no application has ever been made to the Secretary of State for the fencing or extraction of the land from the register. Common land can only be extinguished under the statutes. In any case one has to ask why HCC would want to spend public money to rent common land which as an ancient common is already open for public access for ‘air and exercise’?

HCC say that “as the fencing is not on common land there is no requirement for an application to erect fencing.” I would say that it is on common land, but just supposing the 80 acres was not as they say, then application would still need to be made because the land on the other side of the fence, is registered common land. The truth of the matter is that the Parish Councils at the time had made it clear that they wished the fencing to be removed as it altered the landscape character. There was no legitimate way in which HCC could remove the land from the register in the face of local opposition at the time, especially by the commoners of Broxhead, so they chose to do it anyway.

There is a further confusion which needs explanation and that is; in their letter to me HCC state -
They were “instructed by the Commons Commissioner to remove the land from the register following a Court of Appeal Order” but in your letter to me you say “The land was ordered by the Court of Appeal to be removed from the Common Register”. So who really was it that ordered HCC to remove the land from the register? The Court of Appeal or the Commons Commissioner?

I say it was neither and that HCC took the matter into their own hands and did not observe the law in so doing. As explained, neither the Court of Appeal or the CCC had the jurisdiction to order HCC to remove any land from the register once the CCC’s decision had become final. (22.11.74)

As you can see from the letter from HCC, I have tried to take the matter up with them and been told that they will implement their policy of unreasonable complainant behaviour if I address them again on this matter.

The fences obstruct access to this public amenity ground to which access for ‘air and exercise’ exists but is denied and has been for far too long. It has been frustrated by a Council giving false representation, failing to disclose and abusing their office by misinforming at least nine public inquiries about the terms of a lease which cannot be valid since no application for the fencing has ever been made.

It is not up to individuals to address the criminal activities of government but that of the CID. I am asking you to please do your job and protect the public rights for ‘air and exercise’ to this ancient common land. In the light of plans for the enlargement of Whitehill/Bordon I would say this is a matter of prime importance for the area.

In a recent speech to the Institute for Government, Lord Neuberger said “We must always bear in mind that the ability to hold the Executive to account is essential to the rule of law: it protects citizens from administrative excess and ensures that the Executive adheres to the law. It is equally essential for the maintenance of Parliamentary Sovereignty.”

Please help the people of this neighbourhood to regain what is rightfully theirs and the protection of this ancient common under statutes which appear to have been deliberately bypassed.