Crown grant in 1837 at perpetual rent of right to enclose part of royal Forest for Poor Law purposes – Right of re-entry reserved on change of use – Plaintiff using land as hospital for 50 years – Whether right of re-entry extinguished by subsequent conveyances pursuant to forestry and national health legislation
Two parcels of land (the red land and the blue land) at Lyndhurst, Hampshire formed the site of a hospital operated by the plaintiff. By a royal warrant executed in 1836 the Treasury Commissioners granted to the regional Guardians of the Poor and their successors “full power licence and authority to enter upon and enclose [the red land]” to be held by the grantees on trust, inter alia, to build and run a workhouse. The warrant reserved to the grantors a perpetual annual rent of five shillings and a right of re-entry exercisable in the event of the land being used for any purpose other than that stated. By a further warrant executed in 1848 the guardians acquired the blue land on substantially the same terms. In 1926 an order in council made pursuant to the Forestry (Transfer of Woods) Act 1923 vested in the Forestry Commissioners all the interest of the Crown in various forest lands, including “lands situate within the external boundaries of the New Forest” as defined on a deposited plan. By the Forestry Act 1945 all Forestry Commission land was vested in the Minister of Agriculture Fisheries and Food (MAFF). By conveyances executed in 1968 and 1979 MAFF purported to convey the lands in fee simple to the Minister of Health and the Secretary of State for Social Services respectively. The use for hospital purposes began some years before the National Assistance Act 1948 which formally abolished the workhouse system. In 1995 the Secretary of State for Health purported to convey the hospital to the plaintiff, who discovered on attempting to effect first registration, that the defendants had entered a caution purporting to preserve their ancient rights of re-entry. In opposing the plaintiff’s proceedings to have the caution vacated, the defendants contended that the Crown had at no time parted with the fee simple and that the right of re-entry remained exercisable.
Held Judgment was given for the plaintiff.
1. Since the warrants conferred exclusive possession and reserved a rent, the intended relationship was one of landlord and tenant, not licensor and licensee. Moreover the language was inapt for the creation of a perpetual rent charge. The subsequent payment of the rent by the guardians converted what might otherwise have been an invalid lease (for indefinite duration) into a tenancy from year to year: see Prudential Assurance Co Ltd v London Residuary Body [1992] 2 EGLR 56.
2. In the light of its statutory background the 1926 Order in Council did not limit “forest” to areas afforested in the usual sense. The plaintiffs had accordingly correctly contended that the freehold reversion passed from the Crown to the Forestry Commissioners with the result that the tenancy (together with the right of re-entry) was eventually extinguished by process of merger.
Jonathan Brock QC (instructed by Coffin Mew & Clover, of Southampton) appeared for the plaintiffs; Edwin Johnson (instructed by Farrer & Co) appeared for the defendants.
