National Trust wanting to fence areas of common land – Defendants claiming National Trust had no authority to do so – Whether on true construction of section 29 of National Trust Act 1907 and section 23(1) of the National Trust Act 1971 fencing could be carried out – National Trust empowered to carry out fencing
The defendants were members of the plaintiff society and were also members of the Open Spaces Society. A dispute arose between the parties as to the extent of the power conferred by statute upon the plaintiff to fence common land which it held. The plaintiff wished to fence, inter alia, part of the common land it owned in the Quantock Hills in order to increase its use as grazing which had declined due to motor cars causing danger to animals. The defendants objected. On the suggestion of the Attorney-General the plaintiff applied to the court for declaratory relief. Section 23(1) of the National Trust Act 1971stated that “the National Trust shall have power with respect to any Trust property . . . to do anything appearing . . . to be desirable for the purpose of providing or improving, opportunities for the enjoyment of the property by the public . . . and in particular . . . to erect buildings and carry out works”. The plaintiff drew attention to the width of its power “to do anything appearing . . . to be desirable” and submitted that “works” was a word of wide meaning which plainly extended beyond the erection of a building or shed. It was contended that therefore despite its duty under section 29(A) of the National Trust Act 1907 to keep common land as open space it was entitled, if the decision was bona fide and permission of the Secretary of State was obtained, to erect fences on common land. The defendants contended that when parliament meant to refer to fences it did so expressly as in section 194 of the Law of Property Act 1925 and the defendants drew attention to section 9 of the Countryside Act 1968 which provided that land on which works was to be carried out was to be “taken out of the common land”.
Held Judgment for the plaintiff.
1. The draftsman of section 23(1) of the 1971 Act could have taken the view that to expressly specify “works” within section 23(1) without specifying all works foreseeable necessary might, by reference to the expressio unius rule, inadvertently exclude what otherwise would have been intended to be permissible. Therefore the wide meaning of the word “works” was not limited.
2. Although under section 9 of the Countryside Act 1968 land constructed upon was to be taken out of common land that did not mean that it had not been intended that the National Trust Act 1971 was to employ a different and simpler mechanism, even though the 1968 Act had been used in part as a model for the 1971 Act. Therefore, the language of section 23(1) of the 1971 Act was clear and unambiguous and was wide enough to empower the plaintiff to erect fences where it appeared that it was bona fide to do so and the consent of the Secretary of State had been obtained where access by the public would be prevented or impeded.
Sheila Cameron QC and Frank Hinks (instructed by Winckworth & Pemberton) appeared for the plaintiffs; David Ainger (instructed by Brooke North & Goodwin, of Leeds) appeared for the defendants
