Hedges — Maintenance obligation — 1812 inclosure award — Perpetual obligation to keep hedge in good repair and condition — Whether terms of inclosure award bind successors in title — Whether positive obligation enforceable — Whether plaintiffs had locus standi as parishioners
The defendants
were owners of land through which ran a public highway. Between the defendants’
land and the highway was a substantial hedgerow. The defendants applied to the
district council for planning permission for the erection of a farmhouse and an
agricultural store. The defendants proposed to construct a means of access
between the highway and the proposed new buildings by removing 4.5m of the
existing hedgerow by making a new opening, in substitution for an existing one.
This constituted permitted work under regulation 6(1)(a) of the Hedgerow
Regulations 1997. The plaintiffs owned adjoining land and, in their capacity as
parishioners, sought an injunction to restrain the defendants from damaging or
uprooting any part of the hedgerow. They sought a declaration from the court
that the defendants were bound by the obligation ‘to keep in good repair and
condition’ the hedgerow, in the terms of an inclosure award made in 1812. The
issues before the court were: (1) whether the obligation to keep the hedge in
good repair and condition was enforceable against the defendants as successors
in title to land allotted by the award; (2) whether the obligation could be
broken by the making of the intended access way; and (3) whether the obligation
was enforceable at the instance of the plaintiffs.
positive covenant cannot run with land applies by analogy to a positive
obligation contained in an inclosure award. An award by commissioners of a
parcel of land to an allottee operates as nothing more or less than a
conveyance of that land to that person. Obligations imposed under an award are
imposed within the context, and subject to the constraints of, the general law
of property. (2) As a matter of commonsense as well as of proper
interpretation, to breach the hedge by an access of the kind proposed is in no
way inconsistent with the keeping of the hedge in good repair and condition.
The hedge would remain, for by far the greater part of its length, in position
after the proposed work just as it has done for the past two centuries and
more. (3) The plaintiffs did not as parishioners have locus standi to
bring the proceedings.
The following
cases are referred to in the judgment.
Austerberry v Oldham Corporation (1885) 29 ChD 750; 1 TLR 473, CA
Earl of
Cadogan v Armitage (1823) 2 B&C 197
Flamborough
Judgment unreported January 2 1997
Garnett v Pratt [1926] Ch 897
Jones v Price [1965] 2 QB 618; [1965] 3 WLR296; [1965] 2 All ER
625, CA
This was a
hearing of an application by the plaintiffs, Timothy John Marlton and Janet
Elizabeth Marlton, for a declaration and other relief in proceedings against
the defendants, Simon Turner and Heather Turner, relating to a hedge.
Michael Lane
(instructed by Hood Vores & Allwood, of Dereham, Norfolk) appeared for the
plaintiffs; Graham Sinclair (instructed by Rogers & Norton, of Norwich)
represented the defendants.
Giving
judgment, JUDGE LANGAN said: In this action,
commenced in July 1997, the plaintiffs seek to enforce against the defendants
an obligation which was created in 1812 by an inclosure award made pursuant to
a statute of 1808 which is entitled: ‘An Act for Enclosing Lands in the
Parishes of Cley-next-the-Sea, and Field Dalling, in the County
of Norfolk‘. The relevant obligation is one to ‘keep in good repair and
condition’ a hedge which is as easily identifiable today as it must have been
to the commissioners who made the award in 1812. The litigation raises three
short but interesting and, to me at any rate, novel questions of law. These
questions arise within a matrix of facts which are agreed, or almost so.
It is that
absence of factual dispute which, together with the efficiency of the
solicitors on both sides and the co-operation of the court staff, has enabled
the action to come to trial within five weeks of the issue of proceedings.
Factual
background
The lie of the
land can very easily be seen from a copy of the filed plan of the defendants’
title at Her Majesty’s Land Registry. [Not reproduced here.]
Langham Road
runs in a north-south direction through the village of Field Dalling. On May 2
1997 the defendants were registered as proprietors of the land on the east side
of Langham Road, which is edged red on the plan. They already owned land to the
north of the land edged red, extending some distance beyond a point opposite
the road junction shown on the plan north of the land edged red; and they owned
further land on the west side of Langham Road, opposite the land edged red.
On December 17
1996 the plaintiffs were registered as proprietors of a dwelling-house and land
immediately to the south of the land edged red. That is the property which is
described on the plan as Manor House Farm; it is now known as Mount Grace
Manor.
Between the
defendants’ land on the east of Langham Road (that is, the land edged red and
the land to the north) and Langham Road itself there is a substantial and
obviously mature hedgerow. This hedge is breached by gateways opposite the road
junction already mentioned and in the vicinity of the pond which is shown on
the plan.
The defendants
have applied to North Norfolk District Council for planning permission for the
erection on the land edged red of a farmhouse and an agricultural store or
pack-house to be used for the purposes of their fruit-growing business. There
is in or around the area of (I am using deliberately vague words) the boundary,
between the land edged red and the defendants’ land, an existing entrance from
Langham Road to the land edged red. Originally, the defendants’ proposal was to
use this as the means of access between Langham Road and their intended new
buildings. But the plaintiffs have
litigation which has been commenced in this court and is yet to come to trial.
The defendants therefore amended their planning application, with provision for
the construction of a new access way somewhat to the north of the existing
entrance.
The
construction of the new access way would necessarily involve the removal of
some 4.5m of the existing hedge. The defendants intend to close up one of their
existing means of access by planting a new hedge within eight months of the
making of the new opening, thus constituting the intended removal work
permitted by the Hedgerows Regulations 1997, regulation 6(1)(a) and (2).
In this
action, the plaintiffs seek an injunction to prevent the defendants from
damaging or uprooting any part of the hedge. The first plaintiff, in evidence
which was commendably frank, acknowledged that he takes this stance, not out of
a particular devotion to the maintenance of hedgerows, but as a means of
stopping development which he regards as undesirable. The plaintiffs’ case is
that the defendants are bound by the terms of an inclosure award to maintain
the hedge whole and intact; and that they (the plaintiffs) as parishioners of
Field Dalling have locus standi to prosecute this action.
The Acts
and the award
The Act of
1808, to which I have already referred, appointed commissioners for dividing,
allotting and inclosing the open fields, commons and waste grounds and all
other lands and grounds (with specified exceptions) within the parishes of
Cley-next-the-Sea and Field Dalling, and for carrying that Act and the
Inclosure Clauses Act 1801 into execution. The Act of 1801, as one would gather
from the title by which it is commonly known, contained a series of standard
clauses to be incorporated in future Inclosure Acts unless specifically
excluded or varied.
It is
unnecessary for me to examine the provisions of either statute which relate to
division, allotment and inclosure of lands. I must, however, refer to two
provisions which have to do with fences and the like.
First, section
X of the Act of 1801 provides (so far as material) that the commissioners are
’empowered and required to set out … Fences, Banks, Bounds, and Land-Marks, in,
over, upon, and through or by the Sides of the Allottments to be made … as …
they shall think requisite … and the same shall be made, and at all Times for
ever thereafter be supported and kept in Repair, by and at the Expense of …’
those to whom lands have been allotted as the commissioners shall direct.
In the Act of
1808, relating specifically to Cley and Field Dalling, there is a section with
the side note ‘For fencing Allotments’ which reads:
And be it
further enacted that the Lands and Grounds hereby directed to be divided and
allotted, shall be inclosed, hedged, ditched, and fenced by such Persons and
Body or Bodies Politic, Corporate or Collegiate … within such Time and in such
Manner as the said Commissioners shall in and by their said Award order,
direct, and appoint; and the Hedges, Ditches, Drains, and Fences which shall be
made pursuant to the said Award, shall at all times thereafter be maintained
and kept in repair and cleansed by such Persons and Body or Bodies Politic,
Corporate or Collegiate, as the said Commissioners shall by their Award order
and direct.
There is
before the court most helpful, and unchallenged, evidence from Miss Jean
Marjorie Kennedy, who was from 1963 to 1974 the city and county archivist for
the Norfolk and Norwich Record Office, and from 1974 until her retirement in
March 1997 the county archivist for Norfolk. Miss Kennedy has examined two
copies of the award made pursuant to the Act of 1808, which are now held by the
Norfolk Record Office. Both were certified and dated by the commissioners on
December 2 1812.
Miss Kennedy
has obtained or produced what is modestly called a ‘rough tracing’ of the plan
of Field Dalling, which accompanied the award of 1812. [Not reproduced here.]
From the
evidence of Miss Kennedy, the following matters are established:
(1) The
commissioners set out 16 public roads in the parish of Field Dalling, including
one, the 13th public road, which is Langham Road. It is clearly shown, under
both these descriptions, on the plan.
(2) Nine
pieces of land in the parish of Field Dalling were allotted to John Winn
Thomlinson. The third allotment to Thomlinson comprised an area of 33 acres 2
roods and 20 perches to the east of Langham Road. It is shown on the plan and
quite plainly includes the land on the east of Langham Road, which is now owned
by the defendants.
(3) After the
ninth allotment to Thomlinson there follows a provision relating to fencing.
This reads:
And we do
hereby order and direct that the said John Winn Thomlinson and his heirs shall
make and for ever keep in good repair and condition the fences herein after
mentioned in the second, fourth, sixth, seventh and eighth allotments herein
before made to him …
Specific
directions are given as to the fencing of these allotments, after which the
award proceeds:
… and shall
for ever keep in good repair and condition the old boundary fences in the
first, second, third, fourth, fifth, sixth, seventh and ninth allotments hereby
made … which have been heretofore kept in repair by the former owners thereof.
It is agreed
that the hedge between the defendants’ land edged red on the plan and Langham
Road is part of the ‘old boundary fence’ in the third allotment.
Issues
Three issues
have been canvassed before me. The order in which they have been debated is not
perhaps the logical one, but I none the less propose to follow that order in
the remainder of this judgment. The questions are these:
(1) Is the
obligation to keep the hedge in good repair and condition enforceable against
the defendants as successors in title of John Winn Thomlinson?
(2) Would the
obligation be broken by the making of the intended access way?
(3) Is the
obligation enforceable at the instance of the plaintiffs?
It is only if
all three questions are answered in the affirmative that the plaintiffs can
succeed.
Question
one: the burden of the obligation
The
commissioners imposed the obligation to keep the hedge in good repair and
condition upon ‘the said John Winn Thomlinson and his heirs’. I suggested in
the course of argument that these words might not be apt to transmit the
obligation to persons who were successors in title of Thomlinson otherwise than
by descent. The point was not pursued with any enthusiasm by Mr Graham
Sinclair, counsel for the defendants. That by itself is perhaps a sufficient
indication that there was nothing in it; but, if there ever was, this judicial
hare was given its quietus by Mr Michael Lane, appearing for the plaintiffs, who
referred to the case of Earl of Cadogan v Armitage (1823) 2
B&C 197.
That case
demonstrates that, in the language of conveyancers at the beginning of the 19th
century, the word ‘heirs’, which was there used in an exception and reservation
of coals, was not restricted to the period during which the relevant land
continued to pass in a course of descent. ‘X and his heirs’ is, rather, a
synonym for ‘X and his successors in title’: see the judgment of the court
delivered by Bayley J at pp213–214.
Mr Sinclair,
however, submits that, although the obligation is by its terms perpetual in
nature, it is not binding on Thomlinson’s successors in title. He says, without
contradiction from Mr Lane and, in my judgment rightly, that, if the obligation
were framed as a covenant in a deed, it would not be enforceable against
successors in title because the burden of a positive covenant cannot run with
the land. That is undoubtedly good law: see the decision of the Court of Appeal
in Austerberry v Oldham Corporation (1885) 29 ChD 750. The point
was succinctly made in the context of fencing obligations by Willmer LJ in Jones
v Price [1965] 2 QB 618 at p633E. The learned lord justice said:
It is clear
that a right to require the owner of adjoining land to keep the boundary fence
in repair is a right which the law will recognise as a quasi-easement. There is
nothing, for instance, to prevent adjoining occupiers from making an agreement
between themselves that one or other shall keep the boundary fence in repair.
Such an agreement, however, binds only the parties to it, for a covenant to
perform positive acts, such as would be involved in the maintenance of a fence,
is not one the burden of which runs with the lands so as to bind the successors
in title of the covenantor.
Mr Sinclair
goes on — and this is where the controversy arises — that the rule whereby the
burden of a positive covenant cannot run with land applies by analogy to a
positive obligation contained in an inclosure award; and that this raises an
insuperable burden to the claim which has been raised in this action.
Mr Lane, on
the other hand, submits that there is no true analogy here, and that
obligations which arise under the inclosure award are unaffected by rules such
as that exemplified by Austerberry v Oldham Corporation.
The question,
although difficult, is a short one. It is very nearly devoid of authority. Over
the two centuries and more which have elapsed since inclosures began, and
notwithstanding the making of some thousands of awards, counsel have been able
to discover only two cases of any relevance. One is a decision of Judge
Cracknell in Hull County Court. The judgment (which is entitled ‘The Flamborough
judgment’ (unreported 1997)) was delivered on January 2 1997, and I have been
provided with a transcript. That judgment was given after hearing argument from
one party only and must therefore, with respect to the judge, be of limited
assistance.
Of much
greater importance is the decision of Lawrence J in Garnett v Pratt
[1926] Ch 897. The plaintiff was the owner, and the defendants were the owners
and the tenants, of adjoining farms in the North Riding of Yorkshire. Title to
each property stemmed from an inclosure award, which award imposed on the
allottees and their assigns perpetual obligations to maintain certain boundary
walls. The judge held that the obligations were enforceable against the
defendant owners as assigns of the original allottee: see p903.
Mr Lane
naturally relies heavily on Garnett v Pratt. In my judgment,
however, that decision cannot be regarded as determinative of the question
which I am considering. An examination of the report of the argument (see
pp900–901) and of the judgment shows that the point in issue had to do with the
power (if any) of the commissioners to impose the obligation. The defendants
were impeaching the award as being quoad repair of walls, ultra vires.
This attack failed. Enforceability in other respects was assumed, not argued.
Accordingly,
Mr Sinclair is, in my judgment, entitled to take his point as one of principle,
untrammelled by authority binding on this court.
In my
judgment, Mr Sinclair’s analogy is wholly convincing. It is true that title
arising from an inclosure award has, by comparison with the generality of
titles, the peculiar characteristic of a legislative origin, but the
distinctive nature of such a title seems to me to begin and end at that point.
An award by commissioners of a parcel of land to an allottee operates as
nothing more or less than a conveyance of that land to that person. In so far
as the award sets out a private right of way for the benefit of an allottee, he
obtains an easement. I know of no special rules, distinct from the general law
of property, which affect (for example) the interpretation of what might be
called the parcels clause, or the mode in which the right of way may be
exercised. So also, in my judgment, obligations imposed under an award are
imposed within the context and subject to the constraints of the general law of
property. Alternatively, only the clearest of statutory language (which is not
to be found in this case) would be sufficient to take such obligations out of
that context and leave them free of those constraints. One such constraint is,
of course, the rule which prevents the burden of a positive covenant from
running with freehold land and that rule is, in my judgment, fatal to the
plaintiffs’ claim.
Question
two: the extent of the obligation
The next
question has to do with the scope of the obligation imposed by the award. This
question proceeds on the assumption, contrary to what I have just decided, that
the obligation to maintain the hedge is enforceable against the defendants. I
should, however, deal with the issue fully, in case this litigation should go
to appeal.
The terms of
the award are, so far as relevant, ‘for ever keep in good repair and condition
the old boundary fences … which have been heretofore kept in repair by the
former owners thereof’.
There is no
evidence as to the length of the hedge but, as appears from the plans and also
from the aerial photograph, it is quite considerable. As I have already stated,
the defendants propose to uproot some 4.5m of hedgerow but, in compensation, to
close up an existing opening by planting a new hedge.
Both counsel
made submissions as to the proper approach, be it one tending towards the
literal or one leaning towards the purposive, of interpreting legislation. I am
grateful for these submissions but I have to say that I do not, after
considering them, find them of great assistance on any of the questions which I
have to decide. On the present question, I have to concentrate on the terms of
the award which I have just recited. Would the proposed construction of a new
access on the land edged red involve a breach of those terms? Yes, say the
plaintiffs; no, say the defendants.
I am
unhesitatingly of the opinion that the defendants are correct. Any obligation
to maintain a structure, whether natural or artificial, in good repair and
condition must be construed with reference to the nature of the subject-matter
of the obligation. In this case I am concerned, not with a small or isolated
structure (for example, two fine gateposts of some antiquity), but with a
lengthy run of hedge. It seems to me, as a matter of commonsense as well as of
proper interpretation, that to breach the hedge by an access of the kind
proposed is in no way inconsistent with the keeping of the hedge in good repair
and condition. The hedge will remain, for by far the greater part of its
length, in position after the proposed work just as it has done for the past
two centuries and more.
Obviously,
uprooting could be done along such a length of the hedge short of the whole as
to involve a breach of the award. The point at which that stage would be
reached is a matter of degree, but it is a point of which, in my judgment, the
works now proposed fall far short.
I add only
this: there is, in my judgment, considerable force in Mr Sinclair’s submission
to the effect that, if the extreme interpretation advanced by Mr Lane were
accepted, agricultural development would be stultified. For example, gateways
in hedgerows subject to obligations of this kind could never lawfully have been
widened to accommodate the increase over the years in the size of agricultural
vehicles.
Mr Sinclair
observes that this would be a curious result of an award made under a statute,
the very object of which was agricultural improvement. That may be so; but a
similar point could be made with equal force were this obligation to be found
in a conveyance of the relevant land.
Question
three: the plaintiffs’ right to enforce the obligation
This is the
issue of locus standi. The plaintiffs’ case is that they have title to
maintain this action because (and these are put as cumulative, not alternative,
factors) they are residents of the parish of Field Dalling and the hedge runs
alongside a public road within the parish. Mr Lane relies heavily on the Flamborough
judgment. In that case, the individual plaintiff, Mr Seymour, was a
parishioner; the other plaintiff was Yorkshire Wildlife Trust. The defendants
were Flamborough Parish Council, which were both local authority and the owners
of the hedge in question.
At p12 of the
transcript, Judge Cracknell said:
This hedge
bounds a public highway and as such it is for the benefit not only of the owner
of the field but also the public generally and in particular the residents of
Flamborough — what used to be called the inhabitants — at large. If the
parishioners of Flamborough cannot, or others with a legitimate interest in the
maintenance of highways and their boundaries cannot enforce those
duties, do they not become merely empty obligations and something of a farce?
Later, the
learned judge expressed the view, at p14, that the relevant Inclosure Act
imposed obligations which are:
ones that go
beyond merely private and are in the public domain … This series of Acts …
— that is to
say, the Inclosure Acts —
… had the
effect of largely creating the rural world about us in a vast area of England.
It is the basis of what we see about us as we walk, drive or cycle our way
around the highways and byways of the enclosure lands. It must affect the
public interest. To hold that this is a private affair seems to me to be wrong.
I am, with
respect, not convinced that the considerations advanced in these passages meet
the problem which is thrown up by this case. To say that a parishioner has
sufficient interest in the preservation of a feature, which is also the
boundary of a highway, so as to be able to maintain private litigation against
the owner of the feature is, on any footing, a novel proposition.
Further, the
very invocation of a public law aspect to the dispute itself raises a
difficulty. If an obligation of a public nature is said to have been broken,
there are various means of enforcement: by the public authority which are
charged with the duty of enforcing performance of the obligation (that is,
direct enforcement against the party allegedly in breach); or (in some cases)
by the Attorney-General on the relation of the complainant (which is another
form of direct enforcement); or by the complainant seeking judicial review in
respect of the failure of the public authority to secure performance of the
obligation (which might be described as a form of indirect enforcement).
What cannot,
as I understand the law, be done is to take proceedings qua individual
to enforce public law obligations, for example, to restrain an alleged breach
of planning control. It is that kind of impermissible marriage which is being
attempted in this action.
I should, in
fairness to Mr Lane, add that he placed, albeit faintly, his clients’ locus
standi on an alternative basis, namely that they are adjoining owners.
There might perhaps have been force in that basis if the hedge divided the
lands of the parties, so as to form the boundary between those properties. It
does not do so.
Conclusion
I am grateful
to both counsel for their guidance during an excursion into such unfamiliar and
fascinating territory. In the result, as each of the three questions which I
formulated earlier in the judgment has been answered in the negative, the
plaintiffs’ claim fails and the action must be dismissed.
