References: [1995] 4 All ER 931
Coram: Harman J
The court considered that the time period of twenty years necessary to establish a right of common under the Act was the period ending with the date of the application.
Held: The court rectified the register under section 14 so as to remove the registration of an area of land between a row of houses occupied by military personnel and the Ministry’s airbase. The user by the inhabitants of the Ministry’s houses was not ‘as of right’ as was required.
Harman J said that his views on locality were a second ground for his decision: ‘Other points were argued. In particular, Mr Drabble QC argued that it was impossible for a village green to be created by the exercise of rights save on behalf of some recognisable unit of this country–and when I say recognisable I mean recognisable by the law. Such units have in the past been occasionally boroughs, frequently parishes, both ecclesiastical and civil, and occasionally manors, all of which are entities known to the law, and where there is a defined body of persons capable of exercising the rights or granting the rights.
The idea that one can have the creation of a village green for the benefit of an unknown area–and when I say unknown I mean unknown to the law, not undefined by a boundary upon a plan, but unknown in the sense of unrecognised by the law-then one has, says Mr Drabble, no precedent for any such claim and no proper basis in theory for making any such assertion. In my belief that also is a correct analysis.’ and ‘Upon that basis there can be no possible claim of right here arising, and the activities are not activities which could give rise to a claim of right sufficient to found a basis that the activity is enough to create a village green. That would be, in my view, the end of the case and it would then be just to rectify the register because, in my view, it would be unfair and burdensome, that is unjust, to a landowner to have an entry made upon a register which hampers and burdens him in the exercise of his rights over his own land when those burdens have no proper existence at all in law. My judgment therefore is that the motion should succeed’.
Statutes: Commons Registration Act 1965
This case is cited by:
- Cited – Oxfordshire County Council -v- Oxford City Council, Catherine Mary Robinson ChD ([2004] EWHC 12 (Ch), Bailii, Times 30-Jan-04, [2004] 2 WLR 1291, [2004] Ch 253)
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . . - Cited – Oxfordshire County Council -v- Oxford City Council and others HL (Bailii, [2006] UKHL 25, Times 31-May-06, Gazette 08-Jun-06, [2006] 2 WLR 1235, [2006] 2 AC 674, [2006] 22 EG 177, [2006] NPC 62, [2006] BLGR 713, [2006] 2 EGLR 95, [2006] 4 All ER 817)
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . . - Cited – Paddico (267) Ltd -v- Kirklees Metropolitan Council and Others ChD (Bailii, [2011] EWHC 1606 (Ch), [2011] 26 EG 84, [2011] BLGR 727, [2011] NPC 66)
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . . - Cited – Paddico (267) Ltd -v- Kirklees Metropolitan Council and Others ChD (Bailii, [2011] EWHC 1606 (Ch), [2011] 26 EG 84, [2011] BLGR 727, [2011] NPC 66)
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
