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Legal History |
ENID CAMPBELL[*]
Those responsible for the governance and administration of Great Britain's infant colony in New South Wales were never in doubt that, from the time the colony was settled, the laws in force there were such of the laws then operating in England as were capable of being applied in the colony. Some twenty years after the establishment of the first settlement, the imperial Parliament enacted legislation[1] which endowed New South Wales (and Van Diemen's Land) with ‘all laws and statutes in force within the Realm of England at the time’ the Act was passed (25 July 1828) so far as those laws could be applied within the two colonies. The laws which were received into colonial New South Wales included most of England's laws of real property. Some such laws were, however, found to require some modification to adapt them to colonial circumstances and needs. The English laws on rights of commons were a case in point.
Under English law there were several kinds of rights of common, all of them rights of property. New South Wales’ Chief Judge in Equity in 1892 instanced
a common of fishing in rivers or lakes; a common of turbary, conferring the right of cutting turf; a common of estovers, conferring a right to lop timber; and a common of right to dig for coal, minerals and the like ...[2]
But, he continued, ‘the most usual form of common is that of pasturage ...’.[3] It is with that most usual form of common that this essay is concerned. It examines the main features of the English law relating to that form of common rights, the circumstances which led to the grant of rights of common in lands of the Crown in New South Wales, and the legislative measures which were adopted during the nineteenth century to deal with the colony's common lands. The essay concludes with a review of New South Wales’ most recent legislation on the common lands within the State: the Commons Management Act 1989. This most recent legislation displaces the Commons Regulation Act 1898, which was essentially a consolidation of the nineteenth century legislation, with amendments. It was coupled with an overhaul of the State’s Crown lands legislation, the last major consolidation of which had occurred in 1913.
The Commons Management Act 1989 was, politically, an uncontroversial measure. Its legislative history suggests that the institution of rights of common in lands within New South Wales has been thought worthy of preservation, albeit for reasons different from those which led to creation of the first common lands in the colony of New South Wales.
Lands over which villagers were accustomed to graze stock in common with others existed in England well before the Norman Conquest.[4] After the Conquest many of these common lands were appropriated by feudal lords and incorporated into their manors. But individual cultivators holding land in severalty of the lord of the manor were not thereby deprived of their customary use of the so-called manorial waste. By the thirteenth century, it was a well-established principle of the common law that every freeholder had a right appendant to his freehold of grazing stock on the uncultivated portion of his lord’s territory, that known as the manorial waste. On the manorial waste a freeholder was permitted to graze only commonable beasts, that is to say, animals used for ploughing (horses and oxen) and sheep and kine (cows), and then only that number of beasts which he was capable of supporting on his own plot during the winter months – what were termed beasts couchant and levant. Rights of common appendant never existed in Australia for the simple reason that the common law of England on the subject was never received into any of the colonies. In Tyrringham's Case[5] in 1584 it was held that, by common law, a common appendant existed only in relation to freehold land anciently arable, meaning arable land granted in fee by the lord of a manor before the statute Quia Emptores 1290.[6]
English law recognised other varieties of rights of common besides commons appendant, but unlike commons appendant, these were created, not by operation of law, but by express grant or by prescription. If, by express grant or long user a tenant could establish a right in common with others to take part of the produce of the soil of another's land, a right annexed to his land holding, he was said to have a right of common appurtenant. To be valid, a common of this type had to be limited with reference to the needs of the dominant tenement (the tenement to which the right of common was appurtenant). In the case of a common of pasture appurtenant, either the number and kind of beasts which might be grazed had to be specified, or if the number were unspecified, the right of the common had to be limited by the principle of levancy and couchancy.[7]
A further type of right of common was a common in gross. This type of right of common was not annexed to any holding of land and could be granted without any specific delimitation of the number or type of stock which might be grazed on the common land. The lawyers expressed this principle as being that a common in gross could be without stint or sans nombre. The absence of any numerical limitation did not mean that the commoner’s right was an unrestricted one. If the commoner had been granted a common of pasture in gross sans nombre, his right was limited to as many cattle as the common would sustain over and above the cattle levant and couchant of the lord and other commoners.[8]
Traditionally, the regulation of the use of common lands in England devolved upon the manorial courts, the courts presided over by the lord of the manor or his steward and attended by the lord’s tenants. By-laws dealing with pasturage rights figure prominently in the courts’ records: in some they were expressed simply as directives from the lord or his steward, but in most cases the by-laws were declared to have been made with the assent of the tenants.[9] Where a manor was dismembered, the manor court often went out of existence and this ‘could produce disorder in the management of the commons ...’[10] In these circumstances, the commoners themselves sometimes assembled to frame regulations but, since these regulations were based on agreement only, breach of them could not be penalized in the same way as breach of the by-laws of a manor court.[11]
Although the necessity for regulation of common lands tended to diminish with the inclosure of commons in the eighteenth and nineteenth centuries, special measures were introduced by statute to fill the gap left by the disappearance of the feudal jurisdictions.
The first Act dealing generally with rights of common,[12] for example, provided for the adoption, by occupiers of open fields, of rules for the ordering, cultivation, fencing and improvement of the fields and the appointment of field reeves to supervise the administration of the rules so adopted. A similar scheme for regulation of pasturage commons was introduced by the Commons Inclosure Act 1845.[13] Under this Act, the Enclosure Commissioners were empowered to erect new commons in place of the commons lands directed to be inclosed. For the management of the so-called ‘regulated commons’, meetings of the commoners might be called to increase or decrease the stints, and to elect field reeves who, subject to the instructions of a majority in value of commoners, were to determine the periods during which animals might be depastured, and erect and maintain fences, gates, ditches and so forth. These provisions might be applied to commons already stinted or gated,[14] that is to say, to common lands in respect of which the number and kinds of animal a commoner was entitled to graze had been fixed.
By the year 1804 most of the best land in the Cumberland Plain of New South Wales had been alienated by the Crown. Apart from the Cow Pastures – the area in the south-west of the Plain reserved for the grazing of government stock – little of the unappropriated land was fit for cultivation or pasture.[15] Since no way of crossing the Blue Mountains had yet been found, prospects of extending the area of settlement in the colony seemed remote. But the increase of stock in the colony and the depletion of natural pastures had made the provision of additional grazing facilities imperative. It appeared to Governor King that, since it would be impossible to satisfy settlers’ wants by granting them extra land, it would be expedient to allot tracts of Crown land in the more populous districts as grazing commons.[16] He announced his decision to make allotments by a Government Order dated 11 August 1804.[17]
The lands to be made available as depasturage commons were to be confined to those districts in which a number of settlers had been located on small allotments and where it was impracticable to provide additional grazing lands by the issue of further grants of land in severalty. The districts in question – Nelson, Richmond Hill, Phillip (part of a larger district known as Mulgrave Place[18]), Prospect Hill, Baulkham Hills, and the Field of Mars and Eastern Farms – were all closely settled, and in some of them the settlers’ own holdings were liable to seasonal flooding.[19] Although it was King’s intention that these lands should ‘be held and used by the inhabitants of the respective districts as common lands are held and used in that part of Great Britain called England’,[20] local conditions did not permit the English system of commons to be applied in its entirety. There were no manors or manorial courts in the colony. But as Owen CJ in Equity was to observe many years later, ‘the Crown here is in the same position as the lord of the manor is in England’.[21]
For the management of the commons in New South Wales, some system had to be devised which would be akin to that provided in England by the manorial courts. Under Governor King’s scheme, the management of the commons created by grant from the Crown was entrusted to trustees, nominated in the first instance by the settlers, for whose benefit the commons were to be allotted. The trustees so nominated had to be approved by the local Bench of Magistrates and also by the Governor. They were required to be residents of the district and also to be holders of upwards of one hundred acres of land granted to them by the Crown.[22] Grants of rights of common were to be made out in the names of the trustees to be held ‘under the Manorage of Our Sovereign Lord, the King, or the Governor, Lieutenant-Governor, or Officer in Command of this Territory for the time being ...’ Any rights the settlers of the district acquired over any common land were therefore equitable only.
Governor King’s grants of rights of common did not specify who in particular was to be entitled to use the common land.[23] The intended beneficiaries were described simply as the settlers and cultivators of the named district. This method of description was of little consequence, for the holders of the legal interest, the trustees, were defined, and had the question been tested in a court of equity, the trust could, conceivably, have been classified as a charitable one, being a trust for the benefit of the people of a defined locality.[24] Even if the grants of rights of common had been made directly to the settlers of the various districts, it is doubtful whether the indeterminancy of the class of grantees would have mattered. It is true that, at common law, a grant by a private person of rights of common to a fluctuating body, such as the residents of a particular district, was considered void,[25] but where the grant was made by the Crown, it was considered good on the ground that, for the limited purposes of the grant, the Crown by implication had conferred a corporate personality upon the grantees.[26]
Like so many of the early Crown land grants, Governor King’s grants of commons of pasture were very poorly drafted, so much so that, in 1823, Commissioner J T Bigge recommended that they be re-executed. The grants of commons were, according to Bigge, defective in two respects. First, ‘No provision was made for the failure of the legal estate, from the non-agreement of the commoners in the choice of trustees, or their non-approval by the governor’. Secondly, ‘there were no words in the grant of inheritance or survivorship’.[27] Bigge recommended that, when new grants were executed, they ‘should be made to those who were then and are now comprised in the terms of the original grants; namely settlers and cultivators, being free men, and holding land by grant under the Crown, or by lease, for more than seven years’.[28] But, he added:
As this description will not literally include the subsequent purchasers of such grants, it may be advisable to add that description in the new grants, as it is clear that the intention of Governor King was to provide the accommodation of pasturage and means of feeding and rearing cattle to a certain description of proprietors, occupying and cultivating, a certain description of land, or inhabiting a certain district.[29]
Governor King was fairly liberal in his grants of commons. By 1807 no less than thirty-nine and one half square miles had been allotted as commons, compared with 142 square miles granted to individuals.[30]
As the colony developed, the policy of maintaining so large an area as common land was called into question. Governor Macquarie thought that, in order to make more land available for grants in severalty, existing commons ought to be resumed. But, after making inquiries of the commoners to ascertain whether they were prepared to renounce their rights, Commissioner Bigge advised the Governor against such a drastic course of action.[31] Following Bigge’s report, Instructions were given to Governor Brisbane by the Secretary of State for the Colonies that rights of common over Crown land should no longer be granted except in those districts where there was a danger that settlers' own pastures would be damaged or destroyed by flooding.[32]
These Instructions did not prevent the Governor from extending grazing rights over Crown lands by means of Tickets of Occupation. Tickets of Occupation, unlike grants of rights of commons, created no permanent interest in the soil and did not fetter the Crown’s power to alienate the land on terms which would permit the grantee to make use of the land in such manner as he thought fit. They conferred no more than a revocable licence.
During the early years of settlement in New South Wales rights of common over lands of the Crown had been created by the conveyance (by deed under the colony's public seal) of lands to trustees to be held on trust for a defined class of commoners.[33] The Governors’ power to grant rights of common was constrained only by the instructions they received from the Secretary of State for the Colonies. Legislation to control the alienation of Crown lands in the colony (and also in Van Diemen’s Land and South Australia) was not enacted until 1842, in which year the imperial Parliament passed the first Waste Lands Act.[34]
This Act gave effect to the general policy, applied since 1831, that interests in Crown lands in the Australian colonies should not be alienated except by sale. It did, however, preserve the Governor's power to grant pasturage licences for periods of up to twelve months.[35] A second Waste Lands Act was enacted by the imperial Parliament in 1846[36] to provide for the grant of leases and licences, in accordance with regulations to be prescribed by Order in Council. The complementary Order in Council was passed on 9 March 1847.[37]
Neither of these imperial Acts made specific reference to grants of rights of common. The Order in Council did, however, include a clause which authorised the Governor to make rules under which holders of purchased lands within the Settled Districts of the colony might be permitted to depasture stock on vacant Crown lands adjacent to their holdings, free of charge, but not so as to prejudice the Crown's right to sell or lease those lands.[38] Regulations under this clause were made on 25 March 1848.[39] They purported to grant purchasers of freeholds within the Settled Districts a commonage over the vacant Crown lands adjacent to their holdings. They also stated that this right did not convey authority to erect buildings on the Crown lands, or to cultivate or enclose them. The Crown’s right to sell and lease the lands was expressly reserved.[40] In the opinion of the Supreme Court of New South Wales, the right conferred by these regulations was not a proprietary interest. It was ‘a mere permission, revocable at any time, in common with others, until’ the lands in question ‘should be wanted for the purposes of sale or lease’.[41]
When, in 1855, the imperial Parliament passed legislation to establish a system of responsible self government in New South Wales[42] (it endowed the colony’s Parliament with full power to legislate on the disposition of the colony’s waste lands,[43] and, at the same time, repealed the imperial Waste Lands Acts.[44] The latter Act did, however, preserve the operation of the imperial legislation until the colonial Parliament otherwise provided.[45]
The Crown lands legislation subsequently enacted by the New South Wales Parliament (generally known as Robertson’s Acts), like the imperial legislation, did not include any distinct provisions on the grant of rights of common. Something in the nature of rights of common was, however, clearly envisaged. Under s 5 of the Crown Lands Alienation Act 1861[46] the Governor, acting on the advice of the Executive Council, was empowered to reserve or dedicate Crown lands for various public purposes, among them ‘for any pasturage common’. An abstract of the proposed reservation or dedication had to be laid before both Houses of Parliament one month before the dedication. The dedication took effect on publication of a notice thereof in the Government Gazette. Thereafter the land so dedicated might be granted for the declared purposes in fee simple.
Section 29 of the companion Crown Lands Occupation Act 1861[47] empowered the Governor in Council to proclaim and set apart temporarily Crown lands ‘for commonage purposes for the use and benefit of the landholders in any city town or village or other specified locality...’ It also authorised them to ‘make and proclaim regulations for the management of such commonage’ and to place a temporary common in the charge of the trustees of a permanent common in the same locality.
In October 1884 these two Acts were repealed, but the legislation which took their place, the Crown Lands Act 1884[48] (substantially reproduced s 5 of the Crown Lands Alienation Act 1861. The new section – s 104 – included, for the first time, an express provision that a conveyance of dedicated land otherwise than for the purposes for which the land had been dedicated was absolutely void, against Her Majesty and all others. Section 106 empowered the Governor to appoint not less than three trustees to whom dedicated land might be granted; to remove such trustees and replace them.
The 1884 Act also provided means whereby lands which had been dedicated under s 104 could be ‘resumed’. Section 105 provided that if the Governor was of the opinion that the purposes for which land had been dedicated had failed, wholly or in part, or that the trusts annexed to the dedicated land had failed, or could not conveniently be carried out, and that it was expedient in the public interest, to resume or exchange the land, then a notice of the proposal to resume or exchange was to be published in the Gazette, under the hand of the Minister. The notice was to be tabled before both Houses of Parliament within ten days of the notification and the Houses could veto the proposal within the next thirty sitting days. If the Houses did not exercise their power of disallowance, the Governor could proceed to carry out the proposal which had been notified. These provisions of the 1884 Act were substantially incorporated in the Crown Lands Consolidation Act 1913.[49]
It seems to have been accepted that once the Crown had granted land to trustees to be held on trust for commoners, the grant could not be revoked or the common lands resumed by the Crown, except under some statutory provision authorising the same. Thus in 1871 a special Act was passed to resume Ham Common for rededication by the Governor in Council.[50] A grant of this common had been made to trustees on 11 August 1804, but had been found defective. A second grant had been made on 30 September 1851. It contained an error but not one which invalidated the deed of grant. The Act was enacted so that the error could be remedied. Another Act was passed in 1874[51] for the resumption of the Field of Mars Common. This common too had been granted to trustees in 1804 and a fresh deed of grant re-executed on 11 November 1849. On this occasion the Act did not envisage a rededication of the common.
One question which arose for judicial decision was the effect of a dedication of Crown land as a common and the appointment of trustees to manage the designated common. The term ‘dedication’ of Crown lands first appeared in s 23 of the imperial Waste Lands Act 1842, the section defining what were to be considered waste lands for the purposes of that Act. Those lands were –
any lands ... which are, or shall hereafter be vested in Her Majesty, Her Heirs and Successors, and which have not been already granted or lawfully contracted to be granted to any person or persons in fee simple, or for an estate of freehold, or for a term of years and which have not been dedicated and set apart for some public purpose. (Emphasis added.)
This definition was replicated in the Waste Lands Act 1846 and in the definition of Crown lands in s 1 of both the Crown Lands Alienation Act, 1861 and the Crown Lands Occupation Act 1861, and, when those Acts were repealed, in s 4 of the Crown Lands Act 1884.
In November 1884, in the case of Fordyce v Wormall,[52] a Full Court of the Supreme Court of New South Wales held that a proclamation of 1877 which had purported to vest a common in a municipal council was ultra vires. The common had been dedicated in 1871, pursuant to the Crown Lands Alienation Act 1861, and trustees to manage it had been appointed under the second Commons Regulation Act 1873.[53] The Court based its conclusion principally on s 2 of the latter Act (s 4 of the Commons Regulation Act 1898) which had provided, inter alia, that the persons appointed under the name of a common specified in any dedication should be a body corporate with perpetual succession and should be capable of holding the common ‘in perpetuity upon the trusts and for the uses declared in such ... dedication’.
Some years later, the Judicial Committee of the Privy Council, on appeal from the Supreme Court of New South Wales, concluded that the dedication of land in 1866, pursuant to s 5 of the Crown Lands Alienation Act 1861, as a permanent common did not divest the Crown of title in the land so dedicated, or even create a common of pasturage.[54] The instrument of dedication had not identified the nature of the common or those who were to be regarded commoners for whose benefit the common had been dedicated. Nor had trustees of the common been appointed.
What the position would have been had the dedication described the nature of the common right and had identified the class of intended beneficiaries, the Judicial Committee did not indicate. Such a dedication would not have been effective to transfer any legal title to the commoners, but it may have been effective to constitute the Crown as trustee for them.[55] To have regarded the dedication as creative of a trust would have been consistent with s 5 of the Lands Alienation Act 1861. For the Crown to have conveyed the land so dedicated to trustees, to hold on trust for the commoners, would not have contravened the section. The ‘seeming immutability and perpetuity’ of a dedication pursuant to the section, however, yielded ‘to a statute’.[56] And s 105 of the Crown Lands Act 1884 was such a statute. It provided authority not merely for the revocation of dedications of common lands made pursuant to statute, but, according to the Supreme Court of New South Wales, authority also for revocation of dedications made by a grant of common lands to trustees to hold on trust for commoners, in the particular case the grant of Pitt Common by Governor King in 1804.[57]
From 1847, the New South Wales legislature enacted a series of statutes for regulating the common rights granted by the Crown. The original Act of 1847 was repealed and replaced by another Act in 1873. The Act of 1873 was amended in 1886 and 1895, and in 1898 these three Acts were replaced by a consolidating Act. The Act of 1898 was repealed and replaced by the Commons Management Act 1989.
The first of the Commons Regulation Acts – that enacted on 2 October 1847[58] – was enacted primarily to deal with the common lands already allocated by the Crown, but it was expressed in terms which implied that grants of commons could still be made by the Governor, and that the Act was to apply to grants of commons made in the future as well as those previously made.[59] The Act was designed mainly to establish for the commons a managerial system in substitution for that which, at common law, remained in the hands of the Crown, as ‘lord of the manor’, and to regulate the legal relationships between the statutory managers of common lands and the beneficiaries – the commoners – and between them and persons not privy to the commonage regime.
In transmitting a copy of the 1847 Act to the Secretary of State for the Colonies, Earl Grey, Governor Fitz Roy[60] explained that his primary object in promoting the enactment of the Act by the colony's legislature was to ensure that the engagements of former Governors in respect of certain common lands were fulfilled. The lands in question were identified as those at Richmond, Windsor, Wilberforce, Field of Mars, Pitt Town, Wollombi and Liverpool. All of these lands were close to Sydney Town and within the so-called Settled Districts. Deeds of grant had been executed in respect of all of these common lands, except the Wollombi and Liverpool lands which were still held under promise of grant only. The law officers of the Crown in the colony, Governor Fitz Roy reported, had advised that the deeds of grant issued in respect of the commons were invalid. Presumably they had drawn the Governor's attention to the queries Commissioner Bigge had raised over twenty years before about the validity of the grants of commons hitherto made.[61]
The preamble to the 1847 Act recited ‘the mischief’ sought to be remedied and the broad objects sought to be achieved. The particular mischief identified was that, under ‘various instruments under the hand of the Governor for time being of the Colony of New South Wales certain portions of land’ had been
allotted as common lands for the use of settlers and cultivators in the respective districts or next to which such lands are severally situated but such instruments are deemed insufficient in law for the purposes of securing and regulating the rights of common intended to be thereby granted.
The particular measures adopted in the legislation – the appointment of trustees of the commons and the definition of their powers – were ones which the legislature considered it expedient to adopt ‘for the more effectual and equal enjoyment of rights of commonage’.
The Act was predicated on the assumption that rights of commonage conferred by the Crown, in respect of lands of the Crown, would be conferred by deed of grant, under the public seal of the colony, and that such grants had been, and would in the future, be made ‘unto and to the use of the trustees and their successors as ... lands for the use of the settlers and cultivators and other inhabitants of any parish or district within’ New South Wales.[62]
Under the 1847 Act the trustees to whom the Crown conveyed common land were declared to be ‘a body corporate under the name of the trustees of the district’ specified in the deed of grant, and in that name, were to have perpetual succession and a capacity to sue and be sued.[63] This corporate capacity of the trustees was maintained in all the subsequent legislation on rights of commonage.[64] The post 1847 legislation did, however, introduce some significant changes in the rules governing selection of trustees.
Under the 1847 legislation, the choice of the initial trustees was left entirely to the Crown.[65] The trustees vacated their office as trustee only by death, absence from the colony for more than twelve months, or refusal or incapacity to act as trustees. Provision was, however, made whereby, on the occurrence of vacancies in the membership of ‘the board’ of trustees, the beneficiaries – the commoners – should have rights to participate in the selection of successor trustees.[66]
Under the 1873 legislation[67] which displaced that of 1847, it was ordained that the members of the body corporate should be elected, for terms of three years, by beneficiaries of the trust, the commoners, though the Governor could still appoint the first trustees of a common. There were to be no more than five trustees for any one common. They were to be elected at a general meeting of the commoners convened by notification in the Gazette and by notices affixed in the office of the nearest Court of Petty Sessions and ‘in two or more conspicuous places on the ... Common’. The results of an election were to be notified to the Colonial Secretary and notified in the Gazette.[68] Vacancies in the office of trustee were generally to be filled by election.[69] The Governor in Council had a reserve power to appoint trustees in cases where no trustees were elected, or less than five, or if no election was held within twelve months after a vacancy had arisen.[70]
The amending legislation of 1886[71] made it clear that commoners only were eligible to be elected as trustees and then only if they had been entitled to use the common within the six months preceding the election.[72] The electorate was more clearly defined. It was restricted to commoners over the age of twenty-one years.[73] whose names appeared on a commoners roll to be prepared by the trustees.[74]
The 1886 Act also enlarged the powers of the Governor in Council in relation to the office of trustee. They were empowered to appoint the council of a municipality to be trustees of any common within the boundaries of or adjacent to the municipality. If a common was situated in more than one municipality, they could declare which municipal council should be the trustees of that common, or might other trustees of it.[75] They were also empowered to appoint the first trustees of every common dedicated after the passing of the Act.[76] In addition they were empowered to remove trustees from office, upon proof ‘to their satisfaction’ that trustees had neglected or refused ‘to exercise the powers vested in them for the protection of the Common or the Commoners rights’ or that the trustees had ‘permitted any person to occupy or enclose any portion of the Common or to divert the Common from the purpose for which it was granted ... .’[77] To the extent that the provisions of the 1886 Act were inconsistent with the provisions of s 106 of the Crown Lands Act 1884, they would have prevailed.
The Act of 1847, and the Act of 1873 which replaced it, contained a series of provisions conferring powers on the trustees of the commons. The 1847 Act gave those powers only to the trustees holding the lands conveyed by deed of grant and holding the office of trustee pursuant to the provisions of that Act. In contrast, the Act of 1873 made it clear that the empowering provisions applied also to trustees appointed or elected to hold that office in relation to common lands merely dedicated for that purpose by the Crown and legal title to which had not been conveyed to them by deed of grant.[78]
The powers granted to the trustees by the legislation did, to some extent, replicate powers which, at common law, were accorded to the ‘managers’ of common lands, but the statutory underpinning of the powers of the New South Wales’ managers brought those powers into the domain of public law: in a sense, the trustees were to be agents of government.
The power to define grazing rights: Section 3 of the 1847 Act gave to the trustees of a common, or a majority of them, a power to fix, from time to time,
the number and description of cattle and other stock which the respective settlers cultivators and other inhabitants for whose use the common shall have been granted ... [should] having reference to the grant thereof be entitled to depasture upon the said common in right of their respective farms lands and houses ... ’
Section 6 of the 1873 Act preserved this power but extended it to encompass lands dedicated as commons but not formally conveyed.[79]
The power was exercisable only by written instrument, signed and sealed, and the instrument had to be deposited forthwith in the office of the nearest Court of Petty Sessions. The latter requirement was imposed to facilitate exercise of the statutory right accorded to any person aggrieved by the trustees' decision to appeal to the Court, against the decision, within two months of the deposit of the written decision in the Court's office. The appeal was clearly to be on the merits and the Court was empowered to stand in the shoes of the trustees.[80]
Regulation-making power: Section 4 of the 1847 Act and s 7 of the 1873 Act conferred on the trustees authority to legislate. They were authorised –
to make such rules and regulations for the better and more convenient and equal use and enjoyment of the said common and of the timber growing or being grown thereon and on all other rights and privileges and easements incident thereto by the persons having right of common thereon as to them shall seem necessary or expedient ... and also for raising assessing levying and appropriating such moneys as shall be required for the purpose of defraying any costs charges and expenses which the ... Trustees shall or may at any time be put or exposed to in or about the maintaining or improving of the ... common or in the protection of the rights of the ... common ...
(Section 15 of the 1898 Act was similar.)
Rules and regulations made in exercise of this power could be disallowed by the Governor in Council. To facilitate the exercise of this power of veto, it was provided that a copy of the rules and regulations had to be transmitted to the office of the nearest Court of Petty Sessions and the Governor[81] within fourteen days of the making. The power of disallowance was exercisable within two months from receipt of the copy, and during that time the operation of the rules and regulations was suspended. Notice of disallowance had to be given to the relevant Court of Petty Sessions.
Enforcement of regulations: Both the 1847 Act and the 1873 Act invested in the trustees authority to adjudicate alleged breaches of the regulations which had been made by them, and to impose fines not exceeding £10 for any breach of the same.[82] The trustees were not empowered to enforce their ‘judgments’ by any of the processes of execution available in courts proper. If the trustees imposed a fine, and the fine was not paid, enforcement involved a separate proceeding before a Court of Petty Sessions.[83]
Self help: Section 6 of the 1847 Act (and, in the same terms, s 8 of the 1873 Act and s 17 of the 1898 Act) empowered the trustees of a common, or any one of them –
to distrain or cause to be distrained and impounded any cattle or other stock found depasturing upon the ... common which shall belong to any person not entitled to the use thereof or to any commoner who shall at the time of such distress have surcharged thereon ...
In addition the trustees were empowered ‘to claim demand and recover such damages in respect of such cattle or other stock so distrained as could or might be claimed by the owner of any private lands in respect of animals found trespassing and damage upon’ the common. Any such damages claim had to be brought in a court of competent jurisdiction.[84]
The powers of self-help accorded to the trustees were extended by the amending legislation of 1886. Under s 14 of that Act (reproduced in s 18 of the 1898 Act) it was provided that
Any animal infected with any contagious or infectious disease found on a Common may be destroyed by order of the Trustees of such Common after notice describing with reasonable accuracy the animal intended to be destroyed shall have been exhibited for twenty-four hours at the police station nearest the Common and given to the owner of such animal if known to the Trustees stating that it is their intention to destroy such animal and no such destruction shall entail any liability at common law or otherwise upon any person giving or acting under any such order.
Power of lease: Section 5 of the 1847 Act empowered the trustees of a common to grant leases of portions of the common ‘not exceeding in the whole one-fourth part’ of the common at any one time. That power was further limited by a requirement that a lease be consented to by a majority of the commoners assembled at a meeting convened for the purpose of considering the proposal to lease. The maximum period of lease was seven years, and an essential condition of leases was that the land ‘be cleared of timber or otherwise improved by the tenants thereof so as to be of increased value at common at the expiration of the lease’.
Section 11 of the 1873 Act removed this power to lease common lands, and the prohibition against leasing was repeated in s.6 of the 1898 Act.
Section 7 of the 1847 Act enacted –
That all and every the persons entitled for the time being to the use of the said commons [ie those conveyed by the Crown to trustees] as commoners thereon shall have the same rights and remedies between themselves and against strangers as by the law of England are possessed and enjoyed by commoners on the waste lands of any manor in England and that all persons whatsoever shall be subject to the same liabilities in relation to commons in the ... Colony as if the same respectively were commons in England aforesaid.
This section was not replicated in the Acts of 1873 and 1898.[85] Section 10 of the amending legislation of 1886 (reproduced in s 22 of the 1898 Act) declared that the only rights to which a commoner was entitled after the commencement of that Act, in respect of any common were –
the Common of pasturage of stock (including the right of watering such stock) upon the Common and with the permission of the Trustees ... and subject to the payment of such charges as they shall by their own rules and regulations impose the right to take fallen timber or underwood from the Common ...
Section 2 of the 1886 Act (and s 21 of the 1898 Act) delimited rights of commons to those persons whose names appeared on the roll of commoners which the trustees were obliged under the section, to compile and up-date. Section 3 of the same Act (and s 5(3) of the 1898 Act) declared that where land was occupied by `any person other than the owner thereof’, that owner should ‘not be entitled to any Commonable rights in respect of such land’.
The 1873 Act, as amended, substantially introduced a statutory regime under which the rights of commoners were to be determined primarily with reference to statute, and not according to English common law and the statutory amendments of that law made by the English or British Parliament. The changes effected by the 1873 Act, and by the amending legislation of 1886, in this regard were clearly made in the light of the prior colonial legislation which had envisaged that rights of common, short of legal proprietary interests, could be created by dedication of Crown lands as pasturage commons.[86]
The original common lands regime in the New South Wales was one under which the only persons beneficially entitled to use the common lands were the designated class of commoners. Strangers to that regime who used the common without authority could be dealt with as trespassers; likewise their trespassing stock. The amending legislation of 1886 opened access to the common lands to others besides the commoners. Section 10 of the Act (reproduced in s 23 of the 1898 Act) empowered the Minister ‘to grant a licence to any person to take and remove from the Common soil stone or minerals or to cut and remove therefrom any timber’, subject to any charges imposed by him. Section 11 (reproduced in s 24 of the 1898 Act) conferred a statutory right of pasturage to ‘any bona fide carrier teamster traveller or drover ... for the animals actually in use by him for carriage riding or droving during three days consecutively without charge and for such longer period’, not exceeding one week within any period of six months, ‘as may be rendered necessary by rain or floods ...’ But s 12 of the Act (and s 26 of the 1898 Act) stipulated that ‘every drover of travelling such stock through or over any Common’ should give the trustees of the common, or its herdsman, ‘the like notice’ as was ‘required by law to be given to any owner or occupier of land through which he ... [intended] to drive any stock’.
By amending legislation enacted in 1895[87] provision was made whereby the areas within a common accessible to those who had been given a statutory right of pasturage under s 11 of the 1889 Act could be restricted. Under the 1895 Act (and s 26 of the 1898 Act) it became possible for the Minister, upon application by the trustees of a common, to set apart areas within a common for the exclusive use of commoners. Once these reserved portions had been notified in the Gazette and ‘enclosed by a sufficient fence’, they were to be inaccessible to the bona fide carriers and others referred to in s 11 of the 1889 Act. At the same time, the trustees were empowered to fix the number and description of cattle and other stock which commoners were entitled to depasture on their respective portions.
The Commons Regulation Act 1898 consolidated the 1873, 1886 and 1895 Acts of the same name and it made very few changes in that prior legislation. The definition section, s 3, did, however, enact for the first time a definition of the term ‘common’. For the purposes of the Act, the term included
any portion of land which, at the time of the passage of the Commons Regulation Act of 1873 had been by any instrument under the hand of the Governor, whether with or without the advice of the Executive Council, allotted as a common for the use of the inhabitants of the towns, or the cultivators and small farmers in the district in which such common is situated, and any common, whether permanent, temporary, or for pasturage, heretofore or hereafter granted, notified, reserved or dedicated by the Governor.
The Act was amended in later years, but not to any great extent. The most significant amendments were made by s 3 of the Public Trusts and Other Acts (Amendment) Act 1971. By that section a number of the powers which, under the 1898 Act, had been reposed in the Governor in Council were transferred to the Minister, and a new section (s 28A) was added to the principal Act to authorise the Minister to delegate his functions.
This Act repealed the 1898 Act and replaced it.[88] It accompanied an entirely new Crown Lands Act 1989 which replaced the Crown Lands Consolidation Act 1913.
In his second reading speech on the Bill for the new Act on the common lands of New South Wales, the Minister for Natural Resources stated that there were 132 commons still in use in the State.[89] (Another member of the Legislative Assembly mentioned that in 1886 there had been 231 Commons.[90]) The principal objects of the Bill, the Minister explained, were to facilitate diversification of the uses to which the common lands could be put, to enlarge the powers of the trustees responsible for their management, but at the same time to render them more accountable, particularly as regards financial matters.
The 1898 Act, it seems, had proved to be too restrictive of the uses which could be made of the commons. Essentially, the use of the commons was, under that Act, limited to the grazing of stock and the taking of some of the natural products of the soil. As one member of the Legislative Assembly pointed out, the commons had originally been created, and the permitted uses of them had been defined, at a time when
people living in villages and towns had no way of having their milk delivered to them, and nowhere to retain a horse for their transport. The commons attached to the villages or towns were used for milking cows, maintaining food supplies, ... keeping horses for transport
and for providing a source of ‘fuel for local agricultural labourers’.[91] Conditions of life had changed and many of the inhabitants of the localities in which commons existed wished those commons to be available for recreational purposes.[92]
The Government of New South Wales accepted that some form of commons regime was worth preserving and with it that feature of existing arrangements whereby commons were usually managed by trustees elected by the commoners or by an elected local government council. The Opposition agreed. The associated Crown Lands Act 1989 accordingly has kept alive the power of the Crown to dedicate its lands as commons. This power now rests on a general power, reposed in the Minister, to dedicate, by notification in the Gazette, any Crown lands for a public purpose.[93] A public purpose is now defined as one so declared by the Minister, again by notification in the Gazette.[94] It is clearly intended that the public purposes for which Crown lands may be dedicated include the use of such lands as commons. At the same time, the Crown Lands Act 1989 preserves the power to revoke the dedication of Crown lands for public purposes.[95]
The Commons Management Act 1989 includes a definition of commons, for the purposes of that Act (s 3). This definition, to some extent, recapitulates the definition which appeared in the Common Regulation Act 1898. It makes it clear that the Act operates only in relation to commons created by the Crown, in respect of lands of the Crown. It also contains some basic rules, supplementing those in the Crown Lands Act 1989, about identification of lands as commons.
For land to be recognised as a common, subject to the Commons Management Act, there has to be some action, attributable to the Crown, which amount to a setting aside of that land. To ‘set aside’ is defined in s 3 of the Act to include allotment, grant, notification, setting apart, reservation, appropriation and dedication. A ‘setting aside’ which is effective to create a common requires some act on behalf of the Crown indicative of an intention that an identified parcel of Crown land be accessible to a class of persons, in common (rather than in severalty) living within the vicinity of that parcel of that land.
Section 3 – the definitions section of the Act – adopts a definition of commons which differentiates between commons created before 1 February 1989 and those created thereafter. To be recognisable as a pre-1989 common, the land has to be a parcel of land which, on or before 1 February 1989 (the date of the first reading of the Bill), had, by any instrument of the Governor, been ‘set aside as a common for the use of the inhabitants of any specified locality or the cultivators or farmers of any locality in which the’ identified parcel of land was situated. For the future, the action on behalf of the Crown required to make land of the Crown a common was a ‘setting aside’ of a ‘parcel’ of such land, by the Governor or the Minister, ‘as a common or for pasturage for the use of the inhabitants of a specified locality’.
These definitional provisions have been framed in such a way as to emphasise that the new commons regime is not intended to be exactly the same as that provided for under complementary legislation whereunder Crown lands can be dedicated for public parks and reserves, and access to which is to be allowed to persons who are not necessarily inhabitants of the locality.
Under the Commons Management Act 1989 existing trusts of commons have been continued, but the trustees have become a board. When a new common is created, its management is reposed in the first instance in an administrator appointed by the Minister,[96] though the Minister may instead place the management of the common, in a local authority.[97] Trust boards are to consist of three to seven members, the required number to be determined by the Minister.[98] The members are to be elected, every three years, by persons whose names appear on the roll of commoners. This roll is to be maintained by the trust board or whoever else has the management of the common. The commoners have been defined as those persons whose names appear on the roll of commoners. Who is qualified to be so enrolled is left to be prescribed by regulations made by the Governor in Council.[99] There is, however, a statutory right to appeal against a decision refusing an application for enrolment.[100] The trust boards have an estate in fee simple in the commons[101] and now possess wide power to alienate interests in the land, subject to ministerial approval or authority.[102] Their delegated power to make legislation for the care, control and management of the commons is also wide, but such legislation must be approved by the Governor in Council.[103] Management plans are to be adopted for each common, and in the case of existing commons, the plan must be approved by 75 per cent of the commoners present at a special general meeting.[104] All management plans eventually have to be approved by the Minister,[105] but they may be drafted by a trust.[106] If a draft is prepared by the Minister, it must be referred to the relevant trust of an existing common for its consideration.[107] Rights of common are exercisable only by those whose names appear on the roll, but the Act does not define those rights in relation to the uses which may be made of the common. The nature of those rights is left to be defined by a by-law made by the relevant trust board and approved by the Governor in Council.[108]
Under the new Act provision has been made for the settlement of certain kinds of disputes between the trust boards and the commoners. Any commoner who complains of improper management of the affairs of the trust (eg by the board acting inconsistently with the Act or with the applicable management plan) may lodge a written complaint with the Minister.[109] The Minister may deal with the complaint or refer it to the local land board for inquiry and report.[110] If the complaint is upheld the Minister may give certain directions to the trust and if these directions are not followed, the members of the board may be proceeded against in a Local Court for a criminal offence.[111]
The history of rights of common in NSW provides but one illustration of the ways and means it was found necessary or expedient to adopt such of the laws of England received into the Australian colonies in light of the particular circumstances of the colony. English laws regarding rights of common appendant were never received into the Australian colonies. English laws regarding rights of common appurtenant were but it was they which needed modification, by legislative means, to fit them for colonial conditions. These conditions were that grant of rights of common were principally to do with rights to depasture stock on unalienated lands of the Crown. Matters to be dealt with were principally who was to be entrusted with the management of the commons, regulation of the commons, definition of the rights of commoners and how to deal with breach of the regulations governing use of common lands. There were quite frequent changes in the legislation governing these matters, though none which might be regarded as being of a drastic nature. The current legislation reflects experience of almost 200 years in the administration of grant of rights of common in lands of the Crown.
[*] Emeritus Professor of Law, Monash University.
[1] 9 Geo IV c 83, s 24 (1828).
[2] Attorney-General v Municipal Council of Sydney [1892] NSWLawRp 52; (1892) 13 LR (NSW) Eq 139, 145 (Owen CJ in Eq).
[3] Attorney-General v Municipal Council of Sydney [1892] NSWLawRp 52; (1892) 13 LR (NSW) Eq 139, 145 (Owen CJ in Eq).
[4] See W G Hoskins, ‘History of Common Land and Common Rights’ in the Report of the Royal Commission on Common Land, 1955-1958 (Cmnd 462) 149-66; W S Holdsworth, History of English Law (5th ed, 1942) 143-51. On the history of commons see also E C K Gonner, Common Land and Enclosure (1912; 2nd ed, with introduction by G E Mingay 1966).
[5] [1584] EngR 18; 4 Co Rep 36b; 76 ER 973.
[6] 18 Ed I, st 1 c l.
[7] W S Holdsworth, History of English Law (3rd ed, 1937), 320; Richards v Squibb [1792] EngR 2023; (1698) 1 Ld Raym 726; 91 ER 1384; Whitelock v Hutchinson [1839] EngR 565; (1839) 2 M & Rob 205; 174 ER 264.
[8] Report of the Royal Commission on Common Land, 1955-1958, 276.
[9] Hoskins, above n 4, 159-60.
[10] Hoskins, above n 4, 160.
[11] The usual mode of enforcing commons regulations was by the impounding of beasts unlawfully pastured.
[12] 13 Geo. III, c 81 (1773).
[13] 8 & 9 Vic c 118. See Report of the Royal Commission on Common Land, 1955-58, 17980.
[14] The term ‘gate’ sometimes is used synonymously with ‘stint’. There were two forms of gate, one conferring an exclusive right to graze a certain number of animals on another's land, the other, the right in common with others to graze a number of animals on another's land, the number being assessed according to the size of the holder’s gate (Report of the Royal Commission on Common Land, 1955-1958, 273).
[15] T M Perry, Australia's First Frontier (1963) 23, 26.
[16] King to Hobart, 7 August 1803 – HRA I, iv, 309; GO, 11 August 1804 – HRA I, v, 91-3; King to Hobart, 14 August 1804 – HRA I, v, 6.
[17] HRA I, v, 91-3.
[18] Near the towns of Richmond, Windsor and Wilberforce.
[19] The areas allotted as commons were: Nelson district, 5,650 acres; Richmond Hill district, 5,130 acres; Phillip district, 6,150 acres; Prospect Hill district, 9,345 acres; Baulkham Hills district, 3,880 acres; Field of Mars and Eastern Farms district, 5,050 acres (HRA I, 805, n 30). Some years later land at Liverpool was allotted as commons (Macquarie to Liverpool, 18 Oct. 1811 – HRA I, vii, 400).
[20] See n 17 above.
[21] Attorney-General v Municipal Council of Sydney [1892] NSWLawRp 52; (1892) 13 LR (NSW) Eq 139, 148.
[22] GO, 13 Sept. 1804 – HRA I, v, 271.
[23] Persons having rights of common frequently had an endorsement to that effect made on the back of their deeds of grant from the Crown (Report of the Commissioner of Inquiry on the State of Agriculture and Trade in New South Wales (1823) 38).
[24] Goodman v Mayor and Free Burgesses of the Borough of Saltash (1882) 7 App Cas 633. See also Re Christ Church Inclosure Act [1888] UKLawRpCh 8; (1888) 38 Ch D 20.
[25] Gateward's Case [1572] EngR 157; (1607) 6 Co Rep 59b; 77 ER 344; Constable v Nicholson [1863] EngR 457; (1863) 14 CB (NS) 230; 143 ER 434; Chilton v London Corporation [1878] UKLawRpCh 95; (1878) 7 Ch D 735.
[26] Bacon's Abridgement, tit. Corporation B (Vol 2); Willingdale v Maitland [1866] UKLawRpEq 225; (1866) LR 3 Eq 103; Lord Rivers v Adams [1878] UKLawRpExch 36; (1878) LR 3 Ex D 361.
[27] Report of the Commissioner of Inquiry on the State of Agriculture and Trade in New South Wales (1823) 39.
[28] Ibid.
[29] Ibid.
[30] Bligh to Windham, 31 Oct. 1807 – HRA I, vi, 144.
[31] Report of the Commissioner of Inquiry on the State of Agriculture and Trade in New South Wales (1823) 38-9.
[32] Bathurst to Brisbane, 3 Oct. 1823 - HRA I, xi, 140.
[33] See pp 5-6.
[34] 5 & 6 Vict c.36.
[35] Section 17.
[36] 9 & 10 Vic c 104.
[37] NSW Government Gazette 7 October 1847.
[38] Part IV, s 1.
[39] Laws and Regulations relating to the Waste Lands in the Colony of New South Wales (1858) 21-8.
[40] In 1852 the regulations were amended to withdraw Crown lands in the vicinity of the major towns from the operation of the 1848 regulations – GN 30 October 1852 (Laws ... (n 39 above) 30).
[41] Hall v Gibson (No 2) Legge 1125, 1127.
[42] 18 & 19 Vic c 54.
[43] 18 & 19 Vic c 54, Schedule 1, s 54.
[44] 18 & 19 Vic c 56.
[45] Sections 4 and 6.
[46] 25 Vic No 1.
[47] 25 Vic No 2.
[48] 48 Vic No 18.
[49] Sections 24-26.
[50] 34 Vic No 11.
[51] 38 Vic No 3.
[52] (1884) 5 LR (NSW)(L) 461.
[53] 36 Vic No 23.
[54] Municipal Council of Sydney v Attorney-General [1894] UKLawRpAC 36; [1894] AC 444, 453.
[55] See Randwick Municipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54, 76 (Windeyer J). See also Williams v Attorney-General [1915] AC 573; New South Wales v Commonwealth (1926) 38 CLR 14.
[56] Randwick Municipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54, 77 (Windeyer J).
[57] Ex parte Phipps [1892] NSWLawRp 44; (1892) 13 LR (NSW) 171; see also New South Wales v Commonwealth (1926) 38 CLR 14.
[58] 11 Vic No 31.
[59] See preamble and s 1.
[60] 16 December 1847 – HRA I, xxvi, 84-5.
[61] See page 6 above.
[62] Section 1.
[63] Section 1.
[64] Section 2 of 36 Vic No 23 (1873); s 4 of the 1898 Act.
[65] Section 1.
[66] Section 2.
[67] 36 Vic No 23.
[68] Sections 3 and 4; s 6 of the 1898 Act.
[69] Section 5; s 7 of the 1898 Act.
[70] Sections 3 and 5. See also s 4 of 50 Vic No 15 (1886); s 10 of the 1898 Act. The need for such a provision was shown by Fordyce v Wormall (1884) 5 LR (NSW)(L) 461, 465.
[71] 50 Vic No 15.
[72] Section 5; s 6(4) of the 1898 Act.
[73] Section 3; s 6(2) and s 21 of the 1898 Act.
[74] Section2; s 5 of the 1898 Act.
[75] Section 6; cf. s 11 of the 1898 Act.
[76] Section 6; s 6(1) of the 1898 Act.
[77] Section 7; cf. s 28 of the 1898 Act.
[78] See preamble. See also the definition of ‘common’ in s3 of the 1898 Act.
[79] See also s 13 of the 1898 Act. On the power of trustees to prohibit the depasturing of certain kinds of stock see Re Calverwell (1883) Tarl 180.
[80] Under s 6 of the 1873 Act the Court could award costs as between party and party; see also s 13(2) of the 1898 Act.
[81] The 1873 Act also required a copy to be sent to the Colonial Secretary. See also s 15(2) of the 1898 Act.
[82] Section 4 of the 1847 Act; s 7 of the 1873 Act; s 15(1) of the 1898 Act.
[83] Section 9 of the 1847 Act; s 12 of the 1873 Act; s 31 of the 1898 Act.
[84] Moneys recovered and received by the trustees had to be expended by them in improvement of the common ‘or otherwise in relation thereto’: s 8 of the 1847 Act; s 9 of the 1873 Act; cf. s 14 of the 1898 Act.
[85] Presumably because the Act covered not only commons formally conveyed to trustees but also those dedicated under the Crown lands legislation.
[86] See pp 8, 9-11 above.
[87] 59 Vic No 12.
[88] The new Act came into force on 28 September 1990.
[89] Hansard (IA) 22 February 1989, 5806.
[90] Hansard (LA) 1 March 1989, 5511.
[91] Ibid. 5514.
[92] Ibid. 5515-7.
[93] Section 80(1)).
[94] Section 3(1)).
[95] Section 84.
[96] Section 5.
[97] Section 7.
[98] Section 6.
[99] Section 10.
[100] Section 11.
[101] Section 14(1).
[102] Section 16. But trusts cannot alienate commons located in the Western Division, within the meaning of s 4 of the Crown Lands Act 1989.
[104] Section 27.
[105] Section 27.
[106] Section 26.
[107] Section 26.
[108] Sections 9 and 12.
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