Commoning rights

COUNCILLOR Roger Horstield makes some interesting points in his reply to my letter on the `Sheep Issue'. There is, however, little that he can tell me about Warren

James. He is a great hero of mine, and who, if he were here today would most cer­tainly be a member of Dean Forest Voice.

I doubt if he would both­er putting up for the coun­cil, probably seeing it as a waste of time and effort and that his voice (like ours) is better heard outside of it.

In 1831 the grievance of the commoners was quite simply that the trees in the fenced inclosures were well established and that it was time for them to be removed and the areas opened up for the grazing of animals. When this did not happen, Warren and about 2,000 others took them down and drove their sheep and cattle back in to graze. It was as simple as that.

That was the spirit of Warren James that you chose to invoke, Roger, and it is still the spirit of many of the Foresters today.

You state that without a common the rights of com­mon do not exist. What utter nonsense!

Rights to common exist in many forms all over the country, common or no common, be it the right to pasture, the right to take timber from the woods, the right to dig for peat or the the right to mine or quarry minerals.

The right to common is an incorporeal right or hereditament and claimed by custom. (In this place a particular local custom). Such a custom has the force of law in the locality to which it refers, takes the place of the common law in that locality and, in that, may even be inconsistent with the general law.

To stand, the custom must have four main char­acteristics.

It must have been in exis­tence since `time out of minde', but it is enough to show that the custom has been exercised as of right, so far back as living mem­ory can go.

Secondly, the custom must be reasonable. Thirdly, the custom should have continued without interruption from time immemorial.

Lastly, a custom should refer specifically to some locality and should belong to a specified group of peo­ple in a specified locality and to no others

To argue that the Forest sheep have always had right of way is sufficient and is why various author­ities have always backed down from a confronta­tion in law.

The case of Mathews versus Wicks in 1986, and the subsequent appeal, was interesting in that it was not contested on the basis of

ancient commoners rights. Mathews chose (or was ill advised) to fight the case on the basis of the 1981 agreement between the Commoners Association and the Forestry Commission.

The Vice Chancellor in his findings said that The plaintiff expressly dis­claimed any reliance on ancient common or cus­tomary rights to depasture his sheep and relied solely on the rights granted to him under the 1981 Agreement.

The Vice Chancellor went on to say that the the case had obviously been fought as a test case.

In the event it does not and cannot resolve the pri­mary difficulties viz whether sheep belonging to those with ancient rights of pasture are entitled to stray through the streets. Those questions could only be determined after a full investigation of the history and nature of the ancient rights of pasture.

Rather than indulge in further litigation, all parties would be better advised to take up the suggestion made by the Forestry Commission, the cost of which would be small compared with the costs of the present, let alone any future litigation. It is to my mind regrettable that this sensible suggestion which was agreed by the

Commoners and the way authorities was not adopted some years ago.

Wise words from a Judge. It is a pity that he was not available to bang a few heads together today. The situation that we have today is very similar, the Forest of Dean District Council preferring litigation rather than carrying on with discussions on the way forward with a interested parties.

Dean Forest Voice worked hard behind the scenes to try to broker a solution and bring interested parties back to the table. We hope that we have made some progress and that our views and the views of the Vice Chancellor of England prevail. We doubt, however that they will ever be the views of the Vice Chancellor of Bream. Since my letter appeared in the Review and written on behalf of Dean Forest Voice, I have had callers to my home and business congratulating me on its, contents, among them district and county councillors.

We know from that that we are on the right track.

Keith Morgan, Broadwell (for, and on behalf of Dean Forest Voice)