THE
FLAMBOROUGH JUDGMENT
11. The case concerned a hedge which ran along
the boundary of a field that belonged to Flamborough Parish Council.
It separated the field from a public road. All parties agreed
that it was an inclosure hedge, planted under the provisions of
the Flamborough Inclosure Act 1765 and subsequent Award.
12. The Parish Council proposed to remove the
hedge in order to provide a bowling green, of competition standard,
on the site. Mr Colin Seymour, a resident of Flamborough, opposed
the removal of the hedge on the grounds that the terms of the
Inclosure Act and Award, under which the hedge was planted, required
the Parish Council (as its owners) to maintain forever a living
hedge on the site. He argued that, to destroy the hedge, would
run counter to the Council's obligations under the Act and Award
and sought a Declaratory Judgment to this effect. He was joined
in the action by the Yorkshire Wildlife Trust.
13. A Declaratory Judgment seeks an interpretation
of the meaning of the law. The sole concern of the Court was whether
the Parish Council remained bound by the terms of the 1765 Act
and Award. Although it did not consider the merits of the proposed
development, nevertheless the Court concluded that, if the Act
and Award were found to be binding, it would retain discretion
over whether or not to grant a formal declaration to this effect.
14. The case was heard in Hull County Court
by Judge Cracknell. After the initial hearing to determine whether
Mr Seymour and the Wildlife Trust had sufficient interest (locus
standi) to bring the case, the Parish Council withdrew because
they were unable to fund the costs of the action. As a consequence:
— it was decided that the case should
stay in the County Court, even though the view had been expressed
that its potential merited a High Court hearing;
— the Court heard only one side
of the argument as to whether the law was applicable and whether
the Court should exercise its discretion to grant a declaration,
though Judge Cracknell indicated that he had tried to see
both sides.
15. The key points of the judgment, issued in
January 1997, were:
— the Inclosure Award in question required
the owner to "build and forever maintain a quickwood (or
quickset) hedge" where it formed the boundary between the
field and the road. "Quickwood" means a live hedge,
as opposed to post and rails;
— the Flamborough Inclosure Act 1765,
from which the Award derived its authority, had not been repealed.
The statute, therefore, remained in force, even though it was
old, and Flamborough Parish Council were caught by its provisions;
— as the hedge bounded a public highway,
it was for the benefit not only of the owner of the field but
also of the public generally. In these circumstances, the obligations
imposed by the Act and Award were not exclusively private but
affected the public interest and so could be enforced by aggrieved
local inhabitants (e.g., Mr Seymour) or organisations with sufficient
interest (e.g., Yorkshire Wildlife Trust), even though they would
not suffer direct damage as a result of the Parish Council's proposed
removal of the hedge;
— the Judge concluded that there were
no strong reasons in public policy to deny the declaration sought.
Indeed, the public interest suggested it was the duty of all local
authorities to obey the law and the right of their constituents
to have that duty declared in appropriate cases where no other
substantive remedy exists;
— accordingly, he issued a declaration
that Flamborough Parish Council was required by statute forever
to maintain that portion of the quickset hedge in the ownership
of the Council which formed the boundary between the parish allotments
and the highway running from Flamborough to Bempton and known
as the Bemptons Road.
IMPLICATIONS
OF THE
FLAMEBOROUGH JUDGEMENT
16. Judge Cracknell himself pointed out that
the outcome in the Flamborough case depended on the wording of
the particular Inclosure Act and Award, and that each one of over
4,000 such Acts might be expressed in different ways. He warned,
therefore, that "whether a provision is binding as I find
this one to be, has to be judged in each individual case. It would
be wrong therefore to read to much into this case in terms of
its significance for roadside hedgerows generally or for the ability
of individuals or organisations to claim the support of the courts
for a particular hedgerow."
17. However, the judgment illustrates that:
— obligations arising under Inclosure
Acts and Awards may still be enforceable;
— in appropriate circumstances, the
Court may find that a local resident has sufficient interest (locus
standi) to challenge the failure of a local authority to perform
them. [23]
18. As noted in paragraph 13 above, in any case,
the Courts have discretion whether to enforce the obligations
imposed by Inclosure Acts and Awards. The tests and arguments
used by the Court, in deciding that Flamborough parish Council
should continue to maintain the hedge, may be applied if other
cases are brought to Court.
July 1998
19 English Heritage, National Monument Nos. 15205 and
15273. Back
20
English Heritage, National Monument Nos 29830 and 29831. Back
21
English Heritage, National Monument No. 29893. Back
22
Information supplied by English Heritage. Back
23
Whilst the Flamborough case established the possibility of enforcement
of Inclosure Award provisions by somebody not directly affected,
the possibility of enforcement by an adjoining owner (who is directly
affected) has been recognised for many years. See Garnett v Pratt
[1926] Ch 897, in which enforcement action by a neighbour succeeded. Back
