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Re: TH: Spring Songs
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Tim -
Thank you for your great story about the hedgerow that is being
protected by the Flamborough Enclosure Act of 1765 (!) -- It
is astonishing to think that such a decision could still be pre-
serving a local greenspace more than 200 years after its inception.
This should come as persuasive testimony to our readers on the
power and ecological benefit of legal efforts like a land trust,
or its myriad variants. It is also a reiteration that some of
our finest Community Forestry works are going to continue blooming
*not* from the streets, but from the polls and courtrooms and
legislatures. Still further, this demonstrates dramatically how
a successful local greening project should be a collaboration
between folks of vastly different stripes. Of course we need
planters and jackhammerers, but perpetuity cannot be insured with-
out commitments from enlightened lawyers, historians, business
folks, architects, senior citizens, computer geeks and everyone else.
(This, by the way, has always been the methodology of Tree-House) ...
(un)subscribe Requests:
Richard@Flora.Com
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Richard Tryzno Ellsberry | [http://flora.com] | Baltimore / USDA Zone 7
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On Sat, 15 Feb 1997, Tim Henderson <tim.henderson@zetnet.co.uk> wrote:
> It's not completely off-topic, but has news of the Flamborough
> (Yorkshire UK) case been reported at all on your side of the pond ?
> The judgement from Hull County Court was made on January 2nd 1997.
> The case concerned a hedge separating a field from the road.The
> Parish Coucil wanted to destroy the hedge and replace it with a fence
> so that they could build a full size bowling green on the field.
>
> However, a local resident, Colin Seymour (referred to in the
> judgement as "a doughty campaigner on behalf of ancient highways,
> hedgerows, ditches and the like") pointed out that this was an
> enclosure hedge created under an Act and Award which required the
> Parish Council to maintain this hedge FOREVER as a living hedge and
> that to destroy it would run counter to their obligations.
>
> The Flamborough Enclosure Act was passed in 1765 and authorised
> commissioners to divide up common land in the area. On 30 May 1767
> they published their Award which "set out in great detail how the
> fields are to be divided, in what manner, where the public roads are
> to be, how the allotments are to be fenced off one from another and
> from the roads created by the award. Importantly on page 37 it says
> this :" We award Christopher Paul (this field) and we order and
> direct that the said Christopher Paul his heirs and assigns shall
> make and FOREVER MAINTAIN A DITCH AND FENCE....TO DIVIDE THE
> ALLOTMENT FROM THE BEMPTON ROAD."
>
> "On page 46 the award specifies how the boundary is to be made;
> having laid down the dimensions of the ditch, it requires that it
> shall be planted with quickwood. As I understand it, this means
> either blackthorn or quickthorn or whitethorn but in any event it was
> to be a LIVE hedge as opposed to post and rails or something of the sort."
>
> The Act has not, to anyones knowledge, been repealed by the UK
> Parliament and therefore remains the Law. The Judge said "English Law
> knows nothing of what the Roman Lawyers called desuetude, of an Act
> being as it were repealed by reason of age or disuse.... Courts
> cannot and do not strike down a statute merely because it is old....
> I hold therefore, unhesitatingly, that the Act is in force and that
> the Flamborough Parish Council are caught by its provisions. .....The
> conclusion therefore I have reached is that though it is inconvenient
> for the Flamborough Parish Council, it is an inconvenience imposed by
> Act of Parliament and it is not for the Courts to connive at or
> appear to connive at a disregarding of an effective and relevant Act
> of Parliament by a Local Authority."
>
> At the end of the judgement came the order :
> "Order as sought that the Flamborough Parish Council is required by
> statute forever to maintain that portion of the quickset hedge in the
> ownership of the Parish Council which forms the boundary between the
> parish allotments and the highway running from Flamborough to Bempton
> and known as the Bempton Road."
>
> The case is of particular interest in the UK at the moment as , in a
> somewhat belated response to the loss of hedgerows, the government is
> consulting about bringing in legislation to protect important
> hedgerows. However, in many cases this protection could be a lot less
> than already exists if other areas are covered by similar Enclosure
> Acts dating back to the eighteenth century.
>
Regards,
Tim
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