COM 575 Wicca, Treveal, Tremedda, Tregerthen36 … · Tremedda, Tregerthen, Wicca and Treveal Cliff, Zennor, Cornwall Register Unit No: CL7041 Commons Registration Authority: Cornwall

http://www.planning-inspectorate.gov.uk

Application Decision Hearing held on 18 February 2015

by Heidi Cruickshank BSc MSc MIPROW

Appointed by the Secretary of State for Environment, Food and Rural Affairs

Decision date: 21 April 2015

Application Ref: COM 575 Tremedda, Tregerthen, Wicca and Treveal Cliff, Zennor, Cornwall Register Unit No: CL7041

Commons Registration Authority: Cornwall Council

The application, dated 26 March 2013, is made under paragraph 4 of Schedule 2 of the

Commons Act 2006.

The application is made by Mr D Coles on behalf of Save Penwith Moors.

The application is to register waste land of a manor in the Register of Common Land.

Decision

1. The application is approved in part. The land outlined and cross-hatched in red

on the plan attached to this decision shall be added to the Register of Common Land (“the RCL”).

Preliminary Matters

Guidance

2. The applicants, Save Penwith Moors (“SPM”), argued that the Department for

Environment, Food and Rural Affairs (“defra”) guidance that should be referred to in this case was that which was extant at the date of their application. The application was received by Cornwall Council, the Commons Registration

Authority (“the CRA”) on 10 April 2013.

3. Cornwall was one of the pilot areas and, therefore, the “Part 1 of the Commons

Act 2006, Guidance to commons registration authorities and the Planning Inspectorate for the pioneer implementation” was relevant guidance. Revisions have been made, with the latest, published in December 2014 (“the

guidance”). “Part 1 of the Commons Act 2006, Guidance to commons registration authorities and the Planning Inspectorate”, version 2.0 relates to

the full implementation of Part 1 of the Commons Act 2006 (“the 2006 Act”) in a minority of registration authorities and the partial implementation in remaining registration authorities through The Commons Registration

(England) Regulations 20142. This came into force on 15 December 2014.

4. As set out in the guidance3, pioneer authorities, such as Cornwall, were subject

to the Commons Registration (England) Regulations 20084 and the Commons Registration (England) (Amendment) Regulations 20095. These have been revoked and replaced by the 2014 Regulations; all applications made to pioneer

1 Original common land register number 2 SI 2014 No. 3038 3 References to ‘guidance’ in this decision relate to the December 2014 defra guidance 4 SI 2008 No. 1961 5 SI 2009 No. 2018

Application Decision: COM 575

http://www.planning-inspectorate.gov.uk 2

authorities under the 2008 Regulations automatically switch to the equivalent stage in the 2014 Regulations.

5. I am satisfied that it is the current Regulations and guidance which are

relevant. Given that SPM were aware of the changes to the guidance, and able to comment on it, I am satisfied that no prejudice has arisen.

Interpretation

6. It was the view of SPM that there had been a change in the way in which Inspectors were interpreting the guidance, which they felt was to their

disadvantage. Decisions do not set a precedent; although there should be some consistency, every decision will be taken on the basis of the evidence and

arguments presented in relation to that particular case, against the background of the relevant legislation, case law and guidance. This may mean that some, apparently similar, circumstances lead to, apparently, differing outcomes but

does not, in my view, represent a change in interpretation.

Status of Commissioners’ decisions

7. Decisions relating to disputes arising from the Commons Registration Act 1965 (“the 1965 Act”) were dealt with by the Commons Commissioners (“the

Commissioners”). Defra abolished the Commissioners in 2010, with decisions relating to the 2006 Act now taken by the Planning Inspectorate on behalf of the Secretary of State. There was disagreement as to the weight to be given

to Commissioners’ decisions, with the objectors6 seeking to rely on Commissioners’ decisions and SPM suggesting that they were irrelevant. A

paper entitled ‘Briefing Notes’ was presented by SPM in support of their case.

8. I do not consider that the argument that the Commissioners’ decisions predate Hampshire County Council v. Milburn [1990] 7 (“Hampshire v Milburn”) means

that they have no value. They may provide assistance on certain points, however, I take account that they were made in relation to the 1965 Act, not

the 2006 Act, and provide no legal precedent in the way that a court decision does. As a result, I am satisfied that I must give greater weight to the current Act, guidance and relevant case law.

The original application to register the land

9. SPM argued that the land had been provisionally registered as open,

unoccupied and uncultivated under the 1965 Act and that the withdrawal of that application had been based on misleading information. There was no information as to the reason for the withdrawal of the application by the West

Cornwall Footpaths Preservation Society (“the WCFPS”) and so I do not place weight on this argument. It needs to be shown that the land should be

registered on the basis of the situation at the time of the SPM application.

Public Interest

10. SPM believe that the decisions on these applications should be taken on an

administrative basis, with a particular weight given to the public interest, not as a legal argument between the parties. I have been appointed to deal with

6 Unless otherwise stated, where I refer to ‘the objectors’ in this decision I am referring to those who attended and gave evidence to the hearing, in particular the owners of Wicca Farm and Tremedda Farm, supported by the Country Land and Business Association and the National Trust. 7 [1990] 2 WLR. 1240, [1991] 1 AC 325 – often referred to as the Hazeley Heath case



the application in relation to the legislation, including the regulations and guidance, under which it was made. Whilst of course seeking to register land which should be registered, in my view it is for the parties to provide the

relevant evidence regarding their cases.

Procedural Matters

11. I made an unaccompanied site visit on 17 February 2015 and held a hearing at the Centre of Pendeen on 18 February 2015. A request was made for an accompanied site visit following the close of the hearing and I made this visit

on 27 February 2015, accompanied by representatives of the CRA, the National Trust (“NT”) and the owners of Wicca Farm and Tremedda Farm.

The Application Land

12. The application relates to a strip of land on the north8 Cornish coast in the parish of Zennor. To the south are enclosed fields of the farms who own or

rent the application land. The north-eastern part is Treveal9 Cliff, which is bounded by the River Cove to the north-east. Wicca Cliff runs from Wicca Pool

with Tregerthen10 Cliff south-west of the stream which marks the boundary. Another stream marks the south-western boundary of Tregerthen with

Tremedda11 Cliff. Zennor Cliff, to the west, is not part of this application but it includes a small area south of Zennor Cliff, belonging to Treveglos Farm.

13. The South West Coast Path runs on the north-western side, generally following

the line of existing public footpaths. The land is registered as access land under the Countryside and Rights of Way Act 2000 (“the 2000 Act”).

Main Issues

14. The application has been made in accordance with the provisions of paragraph 4 of Schedule 2 to the 2006 Act. The CRA have confirmed that the application

has been processed in accordance with the relevant regulations.

15. The main issue is whether the land is waste land of a manor, at the date of the

current application, and whether before 1 October 2008:

a) the land was provisionally registered as common land under section 4 of the 1965 Act;

b) an objection was made in relation to the provisional registration; and

c) the provisional registration was cancelled in the circumstances specified in

sub-paragraphs (3), (4) or (5). Sub-paragraph (5), on which SPM relies, requires that the person on whose application the provisional registration was made requested or agreed to its cancellation (whether before or after

its referral to a Commons Commissioner).

16. By reference to Attorney General v Hanmer (1858)12 (“Hanmer”) ‘waste land of

the manor’ was defined as “the open, uncultivated and unoccupied lands parcel of the manor other than the demesne lands of the manor”. Whilst the Briefing Notes suggest that Hanmer should not apply, because land intended for

8 Generally orientated north-westerly 9 Also spelt ‘Trevail’ and ‘Travail’ 10 Also spelt ‘Tregarthen’ and ‘Tregurthen’ 11 Also spelt ‘Tremeader’ 12 2 LJ Ch 837, 4 De G & J 205, 28 LJ Ch 511.



registration would have been enclosed and so cease to qualify under the 1965 Act, this is the definition referred to in the guidance. I am satisfied that it is relevant to the matters before me in relation to the 2006 Act.

17. The objectors argued that the application land was not common land as it failed to meet some or all of the necessary criteria to qualify as waste land. Reliance

was placed upon the land being enclosed, cultivated, owned and/or occupied. Reference was also made to it being demesne land in the past and, therefore, incapable of being waste land currently.

18. SPM argued that they only needed to show that the land was once ‘of a manor’ and relied on the physical appearance of the land to show that it was ‘waste

land’ at the date of their application. The burden of proof in such cases is the civil standard, namely, the balance of probabilities13.

Reasons

Whether the land was provisionally registered as common land under section 4 of the 1965 Act

19. The land was provisionally registered as unit number CL704 following an application made on behalf of the WCFPS. The application, reference 1891,

dated 17 December 1969, was entered onto the RCL on 31 March 1970. There is no argument that the application was not properly made under section 4 of the 1965 Act and I am satisfied that this requirement is met.

20. The CRA drew my attention to a small rectangular area14, part of Tregerthen on the boundary with Wicca, which should not have been included in the

application as it was not part of the provisionally registered common. It seems it was included simply due to the width of the pen used in the 2013 application and I am satisfied that it should not be registered as common land under the

2006 Act.

Whether an objection was made to the provisional registration

21. SPM indicate that there were 6 objections, 2 of which have been copied to me. Objection X1027 was made by the National Trust on 14 June 1972 in relation to part of Tregerthen Cliff, on the basis that it was not common land at the date

of registration. M Griggs of Tremedda made an objection on 31 July 1972, numbered X1456, on the same basis.

Whether the provisional registration was cancelled as set out in sub-paragraph (5)

22. Entry 2 in the RCL, dated 30 January 1973, records that the provisional

registration was modified under Regulation 8 of the Commons Registration (Objections and Maps) Regulations, 196815. This allowed the CRA to cancel or

modify a registration to which objection was made, at the request of the applicant. The RCL sets out that the land was removed pursuant to applications dated 16 August and 7 December 1972 made by the WCFPS. This

fulfils the criteria of paragraph 4(5) of Schedule 2 to the 2006 Act.

13 Not ‘beyond reasonable doubt’ as referred to in a letter from Lord de Mauley dated 6 January 2014 14 OS Grid Reference SW 4640 3968 15 SI 1968 No. 989



Whether at the time of the application the land was waste land of a manor

‘Waste land of a manor’

23. The Country Land and Business Association (“the CLA”) note that the 2006 Act

refers at paragraph 4 (2) to whether land is waste land of a manor (emphasis put by the CLA). In Re Chewton Common, Christchurch, Borough of

Christchurch and Milligan (1977) 16 (“Chewton Common”) it was said that “…it is permissible to construe the phrase in this particular context of a post-1925 statute as meaning waste land which was once waste land of a manor in the

days when copyhold tenure still existed…”. Chewton Common was disapproved by the Court of Appeal in Box Parish Council v Lacey (1979)17 (“Box”).

24. However, Box was overturned by Hampshire v Milburn, which concluded “In the appellants’ case it is submitted that in s 22(1) of the 1965 Act ‘waste land of a manor’ means waste land now or formerly of a manor’ or ‘waste land of

manorial origin’. I agree with this submission and with the reasoning of Slade J in [Chewton Common]…”. I therefore agree with SPM that paragraph 4 (2) of

the 2006 Act needs to be read in the context of Hampshire v Milburn. The objectors fairly accepted that the land was formerly ‘of a manor’ and I am

satisfied in this respect.

25. The Hanmer definition is quoted with approval in Hampshire v Milburn and argument was made in objection that applicants needed to deal with “…other

than the demesne lands of the manor” and show that the land was not demesne land. It is my understanding that the argument is made on the basis

that once demesne, the land could not revert to waste and this led to some discussion of the meaning of ‘demesne’.

26. I was referred to Attorney-General v Parsons (1832)18, however, I agree with

the argument in the Briefing Notes that this judgement was concerned with a specific matter and does not assist in defining demesne land in general. I am

satisfied that the more usual definition of the ‘home farm’ is clear and is supported by more recent case law. For example, Hampshire v Milburn sets out that “…there were three categories of land comprised in a manor. The

demesne land belonged to the lord of the manor. The copyhold land was divided between the tenants of the lord of the manor. The remainder of the

land consisted of uncultivated land, referred to as the waste of the manor. The waste land was the natural source of grazing, fodder and fuel for all inhabitants of the manor…”.

27. This follows The President and Scholars of Corpus Christi College in the University of Oxford v Gloucestershire County Council (1983)19 (“Corpus Christi

College”) which said “…the “demesne lands”…were for the personal use of the Lord of the Manor. Dotted all around were the enclosed homes and land occupied by the “tenants of the manor”. They held them by copyhold tenure.

Their titles were entered in the court rolls of the manor…”.

28. Although SPM felt that they should only need to show that land was ‘of a

manor’ the Briefing Notes, by reference to Hampshire v Milburn, are in agreement with the CLA argument that it would be necessary to show that the

16 [1977] 1 W.L.R. 1242 17 [1979] 1 All ER 113, [1980] Ch 109 18 [1832] 2 Cr & J 279,308 19 [1983] Q.B. 360; [1982] 3 All E.R. 995 CA



land was ‘once waste land of a manor’. I agree with SPM that it may be difficult to find land described in such a way. For example, the objectors referred me to the Particulars, Plans, and Conditions of Sale of the Porthia

Estate 1930, which related to land generally to the east but included Treveal Cliff as part of Lot 13, Treveal Farm, and Wicca Cliff as part of Lot 15, Wicca

Farm. Lot 5K is the only area described as ‘Waste Land’, however, I agree with SPM that this does not appear to relate to ‘waste land of a manor’ so much as a physical description of a former mining area now ‘waste’.

29. The Porthia Estate sale documents do describe some commons within specific Lots, for example Hellesveor Moor is sold subject to rights of common and to

cut turf; Hale Moor, part of Estover Farm, is sold subject to rights of common, if any; and, Churchtown, Beagletodn and Skillywidden Farms are noted to include Common and Moor Lands, Amalveor Downs and Skillywadden Moor with

the comment “the Commons, Moors and Downs are subject to certain rights of common”. Whether those lands are now recorded with the common rights or

are waste, the rights having been lost or unrecorded since 1930, is not known. Neither Wicca Farm nor Treveal Farm mention commons nor common rights,

which indicates that such rights were not recognised in 1930.

30. As set out in the Briefing Notes relevant information may come from other sources, such as the sale documents referred to above or tithe documents.

These were generally produced in the early 1840s, under the Tithe Commutation Act 1836, which converted tithes to a fixed money rent. They

consist of the apportionment, map and file. The apportionments are statutory documents which were in the public domain and tithe maps have been treated by the courts as good evidence as to whether land was titheable or not.

31. The apportionment will record the landowner, occupier/s, the name and description of lands and premises and the state of cultivation, as well as

whether or not tithe was payable on a particular area of land, or apportionment. These documents may assist in showing the situation as understood and recorded at that time, with most tithe apportionments

recording a total area of commons or waste.

32. Another argument before me was that land which was let was demesne, as the

Lord of the Manor was taking benefit from the land and so it was no longer ‘waste’. Some Commissioners’ decisions have been made on this basis, however, the Briefing Notes and the CRA refer to contradictory Commissioners’

decisions. There appears to be no legal precedent. I am satisfied that where land was let by copyhold then it was not waste, as copyhold is recognised as

one of the three types of ‘land of a manor’ in the case law referred to above, i.e., it is not waste land. However, I am not satisfied that the act of letting land indicates that it is not waste land; a tenancy gives a right to occupy land

but if the tenant never goes to the land it may remain unoccupied and could be classified as waste, dependant on other relevant factors.

33. On balance, I am satisfied that the Wicca Indenture, 1765, refers to copyhold tenure, relating to three lives. Whilst I agree with the Briefing Notes that it may be possible to show that land was waste prior to copyhold status, no such

evidence has been presented here. Taking account of this evidence, I consider that Wicca could not be found to be waste land of a manor at that time.



34. In relation to the tithe documents Wicca is leased to John Quick, although presumably not the same John Quick who was noted to be 50 years old in 1765. Apportionment 1808 is recorded as western cliff and sheep house, with

state of cultivation furze; 1823 western cliff, state of cultivation croft and turf; and, 1824, eastern cliff, shown as croft. I was informed that the local meaning

of croft was the farmed land area, which may or may not have had the same meaning in the mid-nineteenth century. I agree with SPM that furze, turf and turbary might be typical land types for use by commoners, however, that does

not necessarily mean that that was the use made of it; it has been fairly argued that individual tenants may have had private rights to the produce of

the land, whatever that produce may be.

35. Whilst the tithe documents record lessees against much of the application land I am not satisfied, with the exception of Wicca Farm, that it has been shown

that they held the land by copyhold, such that it could be argued that the land was not potentially waste land. However, I note that part of Tremedda, 1624,

‘Boggy moor’ is described as pasture and 1652, which is included in the application and 1651, which is not, are described as arable. The small part of

Treveglos within the application has apportionment number 1533 and is shown as croft. On balance I consider that these areas were not waste land when surveyed in 1841.

36. The question then arising is whether such land could revert to waste land. In my view it is not inconceivable that land enclosed, and so losing its waste

status, could be abandoned. The process of enclosure to improve agricultural productivity may fail where the returns are insufficient to justify the expense of maintenance and it is not unusual to find abandoned walls on registered

common land.

37. SPM argue that ‘open, uncultivated and unoccupied’ is a single description and

need not be broken into its component parts; however, in Re Burton Heath; Bellord and Others v Colyer (1983) it was noted that if lands were either cultivated or occupied, or both, then they would cease to be waste land of a

manor. I understand the belief of SPM that this land appears to be different from the adjacent smaller fields to the south which are clearly enclosed and

used as agricultural units. However, it seems to me necessary to consider all the parts of the definition to see whether the land is ‘open’, ‘uncultivated’ and ‘unoccupied’, and therefore ‘waste land’, at the time of the application. I agree

with SPM that this is a question of the physical status of the land at the date of application, March 2013.

Open

38. SPM seek to rely upon the definition of ‘open’ being the same as ‘open country’, set out by Natural England (“NE”) in relation to the 2000 Act. SPM indicate this

land to be heath and quote NE as saying that “…whilst individual land parcels might comprise enclosures of varying size, they will in combination form a

landscape that provides open vistas (though sometimes these are interrupted by groups or blocks of trees or scrub).” In relation to moorland NE apparently say that “Many areas of moorland include (on the edge of or within otherwise

relatively larger tracts of land) smaller areas bounded by walls or fences, which are an inherent part of the moorland landscape and will therefore be included

as ‘open country’.”



39. I agree with the objectors that the NE definition relied upon by SPM was derived for the purposes of the 2000 Act and so should not be readily applied to different legislation. Whilst SPM say that it should not be lightly disregarded

in the absence of any other legal description of open land, I consider it appropriate to place weight on the guidance issued specifically in connection

with the 2006 Act, which indicates that open means unenclosed.

40. SPM referred to Corpus Christi College as authority for the potential for fences and enclosures on waste land. This said “Although the “demesne land” was

personal to the Lord of the Manor, nevertheless he sometimes granted to the “tenants of the manor” the right to graze their animals on it, or they acquired it

by custom. In such case their right to graze on the “demesne land” was indistinguishable from their right to graze on the “waste lands of the manor”, so long as it remained open to them and uncultivated although there might be

hedges and gates to keep the cattle from straying …”.

41. It seems that waste land and demesne land could be indistinguishable, being

used in the same way by tenants, or commoners. However, I consider that the statement that “…there might be hedges and gates…” relates specifically to the

demesne land. Hampshire v Milburn indicates that “…[the public]…could not in practice be excluded from access to the waste land because fences would obstruct the exercise by the commoners of their rights…”. This gives further

authority to the view that ‘open’ means ‘unenclosed’ or unfenced.

42. In relation to Treveal, belonging to NT and farmed by Wicca, there is stock-

proof fencing and walls on the north-eastern and south-western boundaries. There is also fencing, and in places walls, along the north-western edge although, understandably from a management and maintenance point of view,

set back from the cliff edge. There is a fence-line through the large area, identified as 1871 and 1873 in the tithe map, although the southern-most

areas lie outside this fencing. A similar situation is seen on Wicca itself, with fencing and walls ensuring that the land is stock proof. The owner and tenant indicated that the existing fences and walls had been in place at the date of the

application, March 2013. I am satisfied that these areas are all enclosed and, therefore, not open as required.

43. Whilst there remain some walls to the south of the fence they are not generally in such condition that the land might be said to be stock proof and furthermore, I consider, on balance, that they are on the land to the south,

enclosing it from the application land. The CLA sought to argue that, being an island nation, the sea itself formed a wall, such that even the land outside the

fences could be seen as enclosed. I agree with SPM that this is a stretch, particularly given the reference within Hanmer to the sea as the waste and demesne of the kings of England. I am satisfied that the land on the sea side,

beyond the walls and fences is open.

44. I consider that the majority of Treveal and Wicca were enclosed by walls and

fencing at the time of application, although some areas to the south and south-east, north and north-west, remained open.

45. In relation to Tregerthen, part belonging to NT and tenanted by Tremedda,

and the eastern cliff of Tremedda, there are walls and some fencing on the southern boundary. However, I consider these to be against the application

land, enclosing the adjacent fields, rather than on the land itself. The



exception to this are the areas which were identified in the tithe map as pasture and arable, which I am satisfied remain enclosed at this time. No evidence was presented by SPM to show that the situation was different at the

time of their application.

46. There is no indication of an extant boundary treatment on the southern edge of

the western cliff of Tremedda, although I note the remains of a former wall on the western boundary.

47. The land parcel belonging to Treveglos Farm has walls on the southern

boundary, again seeming to enclose the fields to the south, although I do note the older walls remaining on other boundaries of this parcel. I note also that

the strip of land on the seaward side of Tregerthen Cliff and the Tremedda owned land is unregistered. Whilst the CLA suggested that it probably belonged to the adjacent land no explanation was given as to why it would not

also have been registered, in 2000 and 2013 respectively.

48. Although I note the natural boundaries arising in places from the terrain in this

area, on balance I consider that Tremedda Cliff, Tregerthen Cliff and the Treveglos Farm land parcel are generally open to each other, to the

unregistered land to the north and to Zennor Cliff such that the application land could not be said to be enclosed, other than those exceptions referred to above. Although there are walls to the south, forming a boundary between the

more intensively farmed land around the farmstead and the cliffs, I consider that these are enclosing that land from the application land. The landowners

and tenants have not produced evidence to the hearing sufficient to show that the land was not open at the time of the application, March 2013.

Uncultivated

49. SPM argue that the NE definition of ‘uncultivated’ is relevant and refer to the NE website for the definition of ‘What is meant by uncultivated land?20’. SPM

indicate that the definition says that “Cultivation in this instance means: physical cultivation by agricultural soil-disrupting activities such as ploughing, tine harrowing, sub-surface harrowing, discing and rotovating; chemical

cultivation by chemical enhancement of the soil through the addition of organic and inorganic fertilisers and soil improvers.”

50. Evidence has been provided of parts of Treveal and Wicca Cliffs being in Higher Level Stewardship (“HLS”), an agri-environment scheme administered by NE. Different areas of the land have different targets, for example HK7, the

restoration of species rich, semi natural grassland, is an aim relating to the north-western most part of the application land, whilst the majority of the land

falls within the target HO1, maintenance of lowland heath. The works schedules associated with the targets refer to a number of measures, such as grazing with Galloway cattle to create paths, cutting paths through blackthorn,

allowing grass heads to go to seed and scrub burning. I am entirely satisfied that these works represent management of the land in question, however, on

balance, I do not consider that they can be said to amount to cultivation. Nonetheless, there is a distinct difference in the condition of the land of Treveal and Wicca, which has more of an appearance of grazing land, and the land to

the west.

20 In relation to Environmental Impact Assessment (England)(No. 2) Regulations 2006



51. In relation to Tregerthen there are a few small areas on the southern edge of the application land where animals have been present, however I do not consider that grazing and feeding animals represents cultivation. The vast

majority of the land simply could not be cultivated, due to the terrain, with some noticeable areas of large stones and down to bedrock. I am not satisfied

that sufficient evidence has been provided by the owners or tenants to show that this land was cultivated at the time of the application.

52. In relation to Tremedda I consider that the majority of the land is of such

terrain that cultivation would not be possible. The remainder has no features which could fairly identify it as cultivated land. The Treveglos Farm land

parcel appeared similarly uncultivated at the time of my site visits. The landowners and/or tenants have not produced evidence to the hearing sufficient to show that this land was cultivated at the time of the application,

March 2013.

53. On balance, I am satisfied that the application land was ‘uncultivated’ at the

time of application, March 2013, although there is some merit in the argument that Wicca and Treveal have been improved and brought in hand to the extent

that they fall outside the definition of waste land.

Unoccupied

54. I consider there to be confusion between legal occupation, which may relate to

ownership and/or tenancy, and physical occupation. Hampshire v Milburn and Corpus Christi College make it clear that ownership is not relevant to the

question. The guidance indicates that “…land does not cease to be unoccupied (and therefore cease to be waste) merely because it is subject to a tenancy, lease or licence whose sole or principal purpose is to enable the land to be

extensively grazed. Occupation requires some physical use of the land to the exclusion of others: such might occur if the land were occupied by a quarry, or

were improved by a tenant (e.g. by cultivating and reseeding moorland) for his own exclusive use and benefit. Nor does Defra consider that shared upland grazing of manorial origin will have ceased to be waste land merely because

there is provision for grazing the land contained in several tenancy agreements.” The reference is to the physical use of the land.

55. In relation to Treveal and Wicca I am satisfied that those areas fenced and the areas to the south of the fencing are exclusively occupied by the owner of Wicca Farm, in ownership and tenancy as appropriate. Whilst it was said that

the land on the seaward side of the fences was indirectly managed, with for example, samphire growing in some areas, I do not consider that this land can

be said to be occupied in the same way. Although it is unlikely that any other party would use the land, I consider that it is not physically occupied to the exclusion of others.

56. As noted, Tremedda Cliff, Tregerthen Cliff and the Treveglos Farm land parcel are open and does not appear capable of exclusive occupation. The

landowners and tenants have not produced evidence to the hearing sufficient to show that this land was not unoccupied at the application date, March 2013.

Summary

57. There is evidence that Wicca was copyhold land from at least 1755. Both Wicca and Treveal were sold in 1930 with no mention of commons or common



rights, despite such matters having been mentioned in relation to other land in the same document. At the date of the application, March 2013, the majority of both parcels was enclosed and exclusively occupied and the state of the land

was such that it can be said to be improved. On the balance of probabilities, therefore I do not consider that Wicca and Treveal have been shown to be

waste land of a manor and this land should not be registered as common land.

58. I consider that parts of Tregerthen, the small area on the boundary with Wicca and apportionment number 1652 should not be registered as common

land. Part was not provisionally registered, and so mistakenly advertised at this time, and part was not waste land in the mid-nineteenth century and

remains today as enclosed separately from the adjacent land. I consider a similar situation exists in relation to apportionment number 1624 in Tremedda.

59. However, for the remaining land, including the Treveglos Farm land parcel and the unregistered land, I consider, on the balance of probabilities, that the land

was open, uncultivated and unoccupied at the date of application, March 2013. As a result, I am satisfied that this land should be registered as common land.

Other matters

60. Concerns were raised about the interaction of NE with the general public and landowners; whether this will provide better protection for the land; whether or

not it is in the public interest to register the land as common land; implementation and management of environmental stewardship schemes and

projects, particularly HLS and the Heathland, Environment, Agriculture, Tourism, Heritage (HEATH) project; potential conflict with Part 4 of the 2006 Act and matters relating to occupiers’ liability; and, effects of works on other

land. I understand the importance of these points to those living and working in the area, however, they are not matters I am able to take into account

under the legislation.

Conclusions

61. Having regard to these and all other matters raised at the hearing and in the

written representations, I conclude, on the balance of probabilities, that the criteria for the registration of the application land as common land under

paragraph 2(4) of the Schedule 2 to the 2006 Act has been met for part of the land applied for.

Heidi Cruickshank Inspector



APPEARANCES

For the Commons Registration Authority:

Mr M Wright Cornwall Council For the Applicants, Save Penwith Moors:

Mr I Cooke

Mr D Coles

Interested Parties:

Mr A Hichens

Mr J Mortimer Country Land and Business Association

Mr T Odling National Trust

DOCUMENTS

1 Plan of the area indicating ownership

2 Mapping error information

3 Documents produced by Save Penwith Moors 4 Documents produced by Mrs and Ms Nankervis

5 Porthia Estate sale document

6 Cornwall Record Office tithe information (CDs)

7 Letter from the National Trust

In Objection:

Mrs B Monies

Ms R Nankervis

Mrs J Nankervis



PLAN NOT TO ORIGINAL SCALE





