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Ministry of Defence v Wiltshire County Council; 3 May 1995

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
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