in company with certain commoners and representatives of the various Local Authorities. The common appears to be an area of about 141 acres which is claimed to be waste land of the Manor of Beauchamp Court, otherwise Holy Thorn Green and Powick. It is situated within five miles of Worcester, with a population of about 50,000 inhabitants, and three and a half to four miles from Great Malvern, which has a population of about 16,000. It is therefore a suburban common within the meaning of the Commons Act of 1876. It lies at an altitude of about 200 feet. I was informed at the Inquiry that the whole of the common was subject to pasturage rights all the year round. It is used frequently by the inhabitants of both Worcester and Malvern as a pleasure resort for picnic parties and parties of school children. As the result of the Inquiry it appeared to be quite clear that there was a unanimous feeling in favour of regulation, and as the result of that the Ministry decided to draft a Provisional Order containing the clauses which in their view would give effect to what was desired at the public Inquiry and by the applicants. I think it would be convenient, perhaps, if I just went through the Provisional Order and pointed out the various parts to the Committee the essential parts so as to save going through every clause. The Preamble recites the receipt of the application, the holding of the local Inquiry, and the compliance with the provisions of the Act as contained in Part 1. This follows the usual form in these cases: It provides that the persons by whom, stock by which, and the times at which common and pasture may be exercised shall be determined, and similarly as regards any other rights to which the common may be subject. Now I should explain, so that there may be no misunderstanding, that the persons by whom, the stock by which, and the times at which common rights may be exercised falls to be determined by a Valuer who is not appointed until after the Order has been passed by the House of Commons.

Chairman.

1. May I ask a question: Does the Valuer decide who is entitled to the right of common?-He does; he puts it in the form of an award. The first thing that happens, assuming the confirming Bill goes through, is that the commoners

[Continued.

meet and appoint a Valuer, and his duty is to decide who are the commoners, and for that purpose he holds what meetings he likes and hears objections and statements of the people who claim.

2. I see a document before me by Mr. Brickell in which he talks about the rights having been exercised and enjoyed by the residents. Would the Valuer have the right to decide that a resident has any rights of common?-I think strictly legally it is a matter entirely within the discretion of the Valuer, but the Valuer's report of his inquiries locally as to who have any rights is subject to confirmation by the Ministry and it does not become valid till the Ministry have considered it.

3. You probably know what I am leading up to, and that is that the right of common pasture is generally, if not always, in England in connection with the holding of land, is it not?-That is so, and it is quite clear that there may be people I cannot say what line the Valuer will take-but, strictly speaking, he is, I think, entitled in his award to state that A or B has not a right of Common and C and D have a right.

Mr. O'Grady.

4. A Valuer may rule out the right of anyone?-I think he can.

Chairman.

5. I have been on this Committee for I do not know how many years now, the view has always been that strictly nobody can claim a right of common in this country save in respect of the occupation of land? I think that is right; it is a question of legal interpretation.

6. Apparently it would come out always at these Inquiries that a lot of other people who do not hold land but who reside in the parish, have been exercising certain rights, and that is the reason I referred to this letter which is before us. I want the Committee to be quite clear that if a Valuer is appointed, then he can rule that the only residents entitled to rights of common are the holders of land. -After they have appeared before him, of course. Perhaps I might go on with my statement. The applicants desired the insertion of this clause relating to those who had commonable rights chiefly on account of the fact to which there was a considerable amount of attention drawn at the local Inquiry, that certain persons who thought they had the right of turning out animals turned out to be people

16 July, 1924.]

[Continued.

who had no common rights whatever and were not entitled to do so. Part II of the Order deals with improvements. These comprise the setting up of a Board of Conservators, and I may say this at once, that the question of the constitution of the Conservators was a matter which was discussed at great length at the Inquiry. As I said, at the Inquiry there were many representatives of Local Authorities, and there appeared to be a feeling that the Local Authorities should not be represented on the Board of Conservators. I advised the Ministry in my Report that having regard to the fact that Local Authorities like Worcester and Malvern were very much interested in these commons, indeed I thought that even Worcester and Malvern might contribute funds to the upkeep of the common-the Town Council of Powick and generally Local Authorities should have representatives on the Board of Conservators. There was another point too, Sir, and that was that the Powick Parish Council especially were concerned with the Order being obtained under the Act of 1876 and not under the Act of 1899. You will know well the difference between these Acts. The procedure in the case of the one is very involved, the one we are going through now, whereas the regulating Order which can be made under the Act of 1899 is comparatively simple, in that it does not require Parliamentary sanction. I however explained at the Inquiry, the applicant for this Order, Lord Beauchamp, did not want the procedure under the 1899 Act, it may be in which case probably the Powick Parish Council would have been the Local Authority, and he pressed for this procedure under the Act of 1876. As far as the Ministry were concerned, a prima facie case having in their opinion been made out, they gave effect to it. I should make it clear that it was no good any Local Authority, either the Powick Parish Council or any other Local Authority, pressing for an Order under the Act of 1899, because if Lord Beauchamp as Lord of the Manor chose to object, the Order could not proceed; so that that effectually disposed of any question of the Order being made under the Act of 1899.

7. What is the difference between au Order under the Act of 1876 and 1899 Does it affect any question of title?--I may say really that that could have been less successfully achieved under the regulating Order than under an Order of 1376. I think, on the whole, possibly the 1876 Order gives a little more power than an

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Order under 1899, but I do not think to all intents and purposes there would have been much difference.

8. My point is this: I see that under the Order which we are asked to make now we are asked to state that Lord Beauchamp is the Lord of the Manor, whilst in the Report he is only alleged to be so. It is purely legal. Is the effect of the application of the Act of 1899 that it will not give to the Lord of the Manor a statutory title and that the Act of 1876 really does give a statutory title to the Lord of the Manor which we could not give under the Act of 1899?-I do not know that I would go as far as saying that; it is rather a legal point, but I think under the Act of 1876 any title he may have is rather more preserved than under the 1899 Act. That is my opinion, Sir. At a later date I am going to refer back to the question of the Lord of the Manor, because I have a point to make owing to an objection which has come in at the last moment. If I might pass on to Part III of the Provisional Order, that contains certain provisions which are conferred for the benefit of the neighbourhood; they include the reservation to the public of a right of free access at ali times to the common and the privilege of recreation by walking and enjoying air and exercise thereon.

9. Was there a suggestion made of a golf course? I was coming to that in a moment. The Conservators are also given power to enclose temporarily the part set aside for games and also to plant trees for shelter or otherwise, and in any other way to improve or add to the beauty of the common. They are required to preserve as far as possible the existing clump of trees on the common. I may mention, Sir, that under the Act of 1876

it is necessary to insert in any Provisional Order provisions for the benefit of the neighbourhood of this nature; but as regards the games which were played, it appears that the games which have been played on it have been chiefly cricket and football. Golf was formerly played; I do not suggest that there was any proper golf course laid out, but it was certainly played, and at the local Inquiry certainly one commoner, or one alleged commoner, thought that it was undesirable that golf should be allowed to be played because it might kill the sheep. I confess I did not feel I could advise the Minister that golf should be left out, and therefore the Conservators may under the proposed Order allow any games to be played. Part IV deals with

A 4

16 July, 1924.]

the expenses.

I may mention that these are to be met as regards the cost of the proceedings for securing the Order by voluntary subscriptions. I understand the Lord of the Manor, Lord Beauchamp, is finding the expenses of this Order. When the Conservators come to exercise their powers over the common, those expenses will be met by voluntary contributions or possibly by the Local Authorities whose representatives will be on the Board of Conservators, but in so far as they are not defrayed from those two sources they will be provided by means of levying a rate.

Mr. Forestier-Walker.

10. On whom?-On the commoners. 11. The people who will enjoy it?-I am hoping that they will be so met. I do not know how they can levy a rate on parties from Worcester. At the Inquiry I did put it to the Town Clerk of Worcester, who said he could not bind his Council, but that he thought his Council would not be backward in contributing towards any expenses which might be incurred in, after all, beautifying a place for parties from Worcester.

12. When it is suggested that Worcester should be represented on the Board of Conservators, is Worcester prepared to make a contribution towards the upkeep? There was no definite proposal made, but I did raise the question with the Town Clerk who represented them, and he said: "Of course I cannot bind my Council, but I can assure you that the Worcester Town Council wish to see the common regulated and it is a matter of great importance that it should be preserved as an open space."

13. They want to be on?—Yes.

14. Do they make the suggestion that in consequence of wanting to be on they are prepared to do anything which is suggested?-Not definitely, but it was tentatively suggested by me and, as far as there could be an undertaking, it was given by the Worcester Town Clerk.

15. Shall we hear anyone from Worcester?-I do not think so-no. I do not think I need say anything more about Part IV. Part V is the usual clause inserted in these Orders to the effect that there should be inserted in the award to be made in pursuance of the Inclosure Acts, such provisions not inconsistent with those Acts as the Minister should think desirable and proper. That is merely a formal

[Continued.

section. The Draft Order was circulated and advertised very widely, and the next stage was to obtain the signatures of two-thirds-not one-third-in this case two-thirds of the persons interested in the common, and that was obtained, and I can submit the document to the Committee if necessary, and that in fact having been obtained, the Ministry has submitted the Order to Parliament and hence the Select Committee has been appointed. I think really that is the completion, Sir, of my formal statement as to the procedure which has been taken and that procedure is in accordance with the Act of 1876. There are, however, two more points which I would like to mention: One is the question for which I think I am rather personally responsible and which I think may be raised before the Committee, and as they may not want to hear me again I should state it now. At the Inquiry a point was raised as to whether those present would have any further opportunity of a hearing and whether, in other words, there would be another meeting held at which objections could be lodged. Well, Sir, I think certainly it is perfectly evident from the report of the meeting that I said there would be occasion for another meeting. With regard to that, I assumed of course that there would be objections and that a meeting would only be held if there were objections. As a matter of fact, when the Draft Order was circulated, and as I say it was circulated very widely to everybody present and posted up locally, there were in effect no objections to the Order, and therefore accordingly when the Minister received their report and statement signed by two-thirds of the people affected, the Minister decided that there was no necessity to hold another meeting because it would mean incurring expenses. I make that statement because I do not wish the Committee to feel that there was some undertaking which we did not carry out. I mentioned it in good faith that a meeting would be held on the assumption that there would be objections, but there were no objections at all. The second point was that in the Preamble to the Draft Order which you have before you, the last paragraph but one describes the common: "And whereas the said common is waste land of the Manor of Beauchamp Court, otherwise Holy Thorn Green and Powick, and the Right Honourable William Lygon Earl Beauchamp is the

16 July, 1924.] *

[Continued.

Lord of the said Manor and claims as such to be entitled to the soil of the said common." Just lately we have received a claim by the Croome Estate Trustees that they are in effect the owners of three very small portions of the common, which is this little line here and that big bit just below the letter B. They, in effect, claim that those should rot really form part of the Old Hills Common. I do not want to get into any difficulty, because I am glad to say that the applicants' solicitors, Messrs. Hastie, have come to an arrangement with Messrs. Rawle Johnstone & Co., representing the Croome Trustees, and they will state to the Committee a form of words which I venture to hope the Committee will accept in the place of this particular paragraph; and subject to that amendment I would like, as far as the Ministry is concerned, to submit to the Committee that the Order be reported as it stands subject to this amendment which the applicants' solicitors will put before you, Sir. I think that really completes the statement unless the Committee wish to ask me any questions.

Chairman.

16. What is the exact meaning of an urban common?-I think it is described -I have not the clause in front of meas a common within a certain number of miles of a town with a certain number of inhabitants, and this comes within that category, being within four miles.

17. Are there special provisions relating to urban commons?-It is Section 8 of the Act of 1876, which says: "Notice of any application under this Act in relation to a common which is situate either wholly or partly in any town or towns, or within six miles of any town or towns (which common so situate is in this Act referred to as a suburban common) shall be served as soon as may be on the urban sanitary authority or authorities," and that gives those authorities the right to attend an Inquiry although they may not

be

18. Do you think it is an urban common within the Act?-Clearly, Sir, because it is clearly within six miles of Worcester and Malvern.

Mr. Forestier-Walker.

19. What is the population supposed to be?-About 50,000.

20. No, but under the Act, I mean?I was speaking without the words in front of me, but I think there is apparently no criterion as to what the population shall be; there is no limit.

21. It means an urban authority?-It affects a sanitary authority; that is the actual section. That was the clause under which those people had the right to attend the first Inquiry.

Mr. Gibbins.

22. Did you inform them at the first meeting that a second meeting would be held only if there were objections?-I am afraid, Sir, I did not qualify my remarks when making that statement; I assumed the meeting would only be held if there were other objections, otherwise there would be no reason to hold a meeting. We held the one at which everyone was allowed to be admitted and there were seventy or eighty present, and I may be to blame, because I ought to have made it more clear that I was referring to a second meeting only if the need arose for it.

23. Would it not be likely that objections were purposely held back for the second meeting?-I do not know; I do not want to excuse myself if I have made a mistake in this, and it is due to that that people are claiming that they have not had a fair chance of making objections. I should like to read on this subject-I am not attempting to excuse myself-the notice of the Draft Order we published of the 19th March, 1924: Ministry of Agriculture and Fisheries. Old Hills Common-Worcester. Commons Act, 1876. The Ministry of Agriculture and Fisheries hereby give notice that a copy of the Draft Provisional Order framed by them in the matter of the proposed Regulation of Old Hills Common, situate in the Parish of Powick in the County of Worcester, has been deposited in the custody of Mr. O. Walton, Callow End, in the said Parish, for the consideration of all persons interested; and that it is their intention, in case the consents required by the Inclosure Acts, 1845 to 1899, shall be given, to certify that it is expedient that such Provisional Order should be confirmed by Parliament." I feel that those last words gave everybody locally an opportunity of realising that the Ministry were going to proceed in the event of those consents being obtained.

25. May I get back to the only point that seems to me of great importance, and that is the question, that the only person entitled to a right of common is a person who holds land. Will not the Valuer be in a position, if he wishes to so decide, to exclude the right of all the inhabitants on the common? It is a legal point. Is the legal adviser of the Board of Agriculture here?-The legal adviser is not here. I did not anticipate that any point would be raised on which he could usefully give a legal opinion; but I think the legal answer to that is undoubtedly that the Valuer has a perfectly free hand subject to the award being confirmed by the Ministry; so that it is the business of the Valuer to confirm previous rights, and I think clearly he can rule out certain people if in his opinion he has not found that those persons have made out a case for the exercising of commonable rights.

26. You said in some cases the commons rights were not defined; is there not a common law rule with regard to a right of common?-I am afraid perhaps I misled the Committee. I was really meaning that there were certain people who were exercising rights which it was believed that they had not got any power to exercise, or were exercising rights in excess of what they were entitled to exercise, and that was the matter which it was considered that the Valuer ought to decide. For instance, one commoner especially is said now to be turning out animals not only in excess of what he ought to turn out, but is turning out animals every year when he ought only to turn them out one year in three.

Mr. Forestier-Walker.

30. He has not the power to exclude from the common?—No, he cannot exclude the public. The Provisional Order makes it quite clear that there shall be free access to the public and that they cannot exclude people from exercising commonable rights.

Chairman.

31. I should like to have that cleared up? I think there is no question about it that he cannot exclude the public from enjoying and visiting the common and walking about.

32. But the right of access to any common is not a commonable right. I understand that the law is this, that there can be no right of common, certainly not a common which is part of the waste of the Manor, excepting for the occupiers of land, and that the rights would be only pasturage and estover?-That is the usual legal interpretation, but I do not say that in all cases it is always maintained.

33. Is it within the power of the Valuer to decide who can have access to the common?-I think it is, but he cannot exclude the public from walking about, or parties from Worcester coming there and so forth; and it is in respect of those parties that we want the thing regulated. amongst other things, so that they shall be prohibited from lighting fires and so forth.

34. Can we have the opinion of the legal adviser?-Certainly.

35. As to whether the Valuer, if appointed, has not the right to exclude anyone from access to the common who is not entitled to commonable rights, whether pasturage or that of obtaining firewood?-Yes. Very well, Sir, I will make a note of that.

36. Then with regard to the question of a playing field: Is there not a certain number of acres which may be allotted for playing?-No, I think not, Sir.

Mr. Forestier-Walker.] Would it not be left to the Conservators?

Chairman.] I think it is defined.

Witness.] I think under the Act of 1899 only; under the Act of 1876 it is entirely left to the discretion of the Conservators.

Chairman.

37. You might also ascertain that?Yes.