My Barrister went on to say that he thought what may have happened was that either Mr Whitfield did lodge separate objections to the Land and Rights Section of the register (as Brightman J. appears to suggest); or that he lodged merely an objection to the Rights Section of the register but the authority chose also to note that objection in an entry added to the Land Section of the register.
The considerable significance of this point is to be found in the Court of Appeal decision in President and Scholars of Corpus v Gloucester County Council [1983] QB 230 where as landowner’s the college objected to an entry in the Rights Section of the register but did not separately enter any objection to the Land Section. Although they were successful in sustaining their objection in the Rights Section, the Land Section had meanwhile become final and therefore under Section 10 of CRA 1965, had become “conclusive of the matters registered.”
The detailed explanation of a small part of the CRA 1965 highlighted some of the peculiarities of the Broxhead Common registration. Since rights of common cannot exist in the air, they must entail a registration of the land, whereas conversely, common land can exist without any rights.
The rights over Broxhead Common were not different from those claimed on the west side of the B3004, which was owned by the MOD, compared to the east side owned by Mr Whitfield. They were claimed by the same parties and generally extended across the whole Common. The position was that the Secretary of State had accepted that seventeen claims in his ownership were valid, whereas Mr Whitfield denied them all.
In the event that two properties were identified as having rights over the eastern side of the common but concluded that the acts of the other owners in relation to the common had been those of neighbours enjoying the common as they pleased.
That was of enormous significance to the Inquiry, as it demonstrates the CCC’s view that the user evidence was of public user of precisely the kind required to establish a public right of way.
Next time: to be continued.
All 'TCHCC' Parts so far
