Adm Milling Ltd v Tewkesbury Town Council & Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewison |
| Judgment Date | 16 March 2011 |
| Neutral Citation | [2011] EWHC 595 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC09C02229 |
| Date | 16 March 2011 |
[2011] EWHC 595 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lewison
Case No: HC09C02229
Mr William Ainger (instructed by Thomson Snell & Passmore) for the Claimant
Miss Tamsin Cox (instructed by Hedleys) for the First Defendant
Hearing dates: 8 th & 9 th March 2011
Between the west bank of the Mill Avon and the river Severn lies Severn Ham. According to Dyde's History and Antiquities of Tewkesbury (1798) it contained "nearly 200 acres of as rich meadow land as any in the kingdom". He added that:
"It is occasionally used as a race ground; is commonable to the freemen and occupiers of front houses, from Allhallow tide to Candlemas, and is the property of Thomas Dowdeswell, Esq of Pull-Court and others."
The substantive issue in the present case is whether there are rights of public access over that part of Severn Ham which is now owned by ADM Milling Ltd ("ADM"). ADM is the registered proprietor of two parcels of land registered under Title Numbers GR18213 and GR134102. They form the north-eastern tip of Severn Ham. They were formerly used as flour mills, but the mills closed down some years ago. The principal mill buildings, which had been Healings Mill, were built in 1865 but almost certainly on the site of earlier buildings. They are no doubt suitable for redevelopment as apartments for waterside living. ADM is concerned that the
Mr Justice LewisonMr Justice Lewison:
Introduction
Tewkesbury grew up on the east bank of the Avon close to its confluence with the river Severn. Its origins are older than the Domesday Book, in which it was already recorded as having 13 burgesses and a market. Its three main streets were High Street, Church Street and Barton Street. At some point in the middle ages part of the waters of the Avon were diverted through the Mill Avon. This may have been a defensive watercourse; or it may simply have been formed in order to drive water mills. development prospects of its land is not compromised by adverse rights, especially public rights. The principal route by which such rights might exist is under section 193 of the Law of Property Act 1925.
ADM, represented by Mr David Ainger, has therefore brought this action seeking declarations about the status of its land. It joined the Tewkesbury Town Council, a number of trustees, and the Attorney General to its claim. One of the reasons for joining the Town Council, for whom Ms Tamsin Cox appears, is that the first of the declarations sought claimed a declaration affecting not only ADM's land, but also the Town Council's adjoining land which consists of the rest of Severn Ham. Ultimately the Town Council did not object to its joinder as a proper party; but said that no declaration should be made in relation to its own land, in which ADM had no interest. It was content for public rights to exist over its own land; and had no concern whether public rights did or did not exist over ADM's land. In the end Mr Ainger accepted that I should not make declarations about the Town Council's land; so this procedural wrangle fell away. The action was discontinued against the Attorney General; on the basis that the Town Council would advance such arguments that there were which would protect the public interest. The trustees have played no part in the action.
We use the word "aftermath" nowadays to mean the state resulting from some unpleasant event. But it has a technical meaning, which is the meaning in play in this case. It means the crop of grass which springs up after the first mowing in early summer. The right to the aftermath therefore means the right to the second grass or hay crop. That is the right with which this case is concerned.
Local legislation
The growing economy of the eighteenth century led to increased traffic on England's roads. Many of them were little more than tracks (or the remnants of Roman roads) maintained by the parishes through which they ran. Better infrastructure was needed. The establishment of turnpike trusts was a popular means of financing road improvements. Tewkesbury lay on the main turnpike road between Chester and Bristol. In 1786 an Act was passed for road improvements in Tewkesbury, to be carried into effect by Commissioners. The details of the Act need not concern us. What is important for this case is what the Act did not authorise. A proviso to section 19 of the Act precluded the Commissioners from altering, repairing or repaving "the Key and Key Bridge", which were to continue "to be paved and repaired by and under the direction of the said Bailiffs, Burgesses and Commonalty, as the same have been by them from time to time heretofore paved and repaired." However, it seems that the borough did not do a good job on Key Bridge, because in 1808 another Act was passed for taking down and rebuilding it. That Act recited that the Key Bridge:
"… is very ancient and decayed, and from the Violence of the Floods is so much injured as to be dangerous to Travellers, Carriages and Cattle passing over the same"
This Act also appointed Commissioners to carry its purposes into effect. Section 14 empowered them to take down the old bridge, provide a temporary bridge, and then a permanent "good and substantial" new toll bridge to be built with iron, stone or other materials. They were also empowered to make proper roads at each end of the bridge; and they were required to maintain them to a length of 100 yards from the bridge. In fact the construction of the bridge was delayed because of lack of funds; but a cast iron bridge was eventually erected in 1822.
The eighteenth century was also the great age of agricultural improvement. Jethro Tull introduced mechanisation; and Turnip Townshend and others changed crop rotation. The old strip farmed open fields of the middle ages were seen as an impediment to progress; and a multiplicity of rights of common hampered efficient land use. By the end of the century the enclosure movement was in full swing. In The Deserted Village Oliver Goldsmith lamented the passing of the old order:
"Where then, ah! where, shall poverty reside,
To 'scape the pressure of contiguous pride?
If to some common's fenceless limits stray'd
He drives his flock to pick the scanty blade,
Those fenceless fields the sons of wealth divide,
And ev'n the bare-worn common is denied."
Severn Ham's turn came in 180In that year Parliament passed an Inclosure Act authorising the enclosure of Severn Ham. The long title to the Act set out its purposes:
"An Act for inclosing Lands in the Borough and Parish of Tewkesbury, in the County of Gloucester, and for vesting the after or latter Math of a Meadow called Severn Ham, within the said Borough and Parish, in Trustees for certain Purposes."
The preamble set out the factual background. So far as relevant it was as follows. Within the borough there was a "large Open and Common Meadow called Severn Ham." Thomas Dowdeswell and others were the proprietors of Severn Ham. The land in question was within the manor of Tewkesbury, of which the borough corporation was the lord of the manor. (According to the Victoria County History the manor had been granted to the borough corporation in 1610. It appears that the borough corporation sold the lordship in 1837, but by 1935 had reacquired it.) The properties of the several proprietors in the fields and meadows "are very much intermixed and dispersed in small Parcels, and inconveniently situated; and are therefore incapable of much Improvement in their present State". It went on to say that it would be highly advantageous to all parties "if such Rights of Common were altogether extinguished … and if such Field, Meadows and Lands, were divided and allotted, and if the same (except the said Meadow called Severn Ham) were inclosed". The preamble described the rights of common themselves as follows: "the Burgesses or Freemen of the Borough of Tewesbury aforesaid, resident within the said Borough for the Time being, and the Occupiers for the Time being of certain Houses situate within the said Borough, are entitled to a Right of Common for a limited Number of their own Cattle only, … in the said Meadow called Severn Ham from the Twelfth Day of August to the Thirteenth Day of February in every Year, both inclusive". Although the preamble to the Act did not go into any more detail about the extent of the rights, the Victoria County History says that the right was a right for each freeman to pasture 3 horses, 6 cows, or 10 sheep (provided they were his own); and for each burgess to pasture twice as many. The Act went on to say that those rights "have become of little Value to the several Persons entitled to Rights of Common thereon, and it would be highly advantageous to all parties interested therein, if such Rights of Common were altogether extinguished … and if the after or latter Math of the said Meadow called Severn Ham were invested in Trustees for the several Purposes herein-after mentioned." Messrs Fulljames and Smith were appointed as commissioners "for dividing and allotting the said Common Fields, Meadows and Lands, and for inclosing the same (save and except the said Meadow called Severn Ham)". Their powers were set out in the Act. Section 19 required them to allot land equal in value to one ninth of Severn Ham to the impropriator of tithes (a Mr Dipper). Section 24 of the Act provided that:
"… the After or Latter Math of the said Meadow called Severn Ham, shall be, and the same are hereby declared to be, vested in the said Trustees and their Successors, to be appointed by virtue of this Act, for ever freed and discharged of and from all Right, Title, Interest, Claim and Demand whatsoever, which any Person or Persons could or might have in or to the same,...
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Common and Pasture
...at [18]. This was a case on greens, but the same logic applies to rights of common. 31 See ADM Milling Ltd v Tewkesbury Town Council [2011] EWHC 595 (Ch) at [64]. 32 Note to Cheesman v Hardham (1818) 1 B & A 706 at 712, 106 ER 260 at 262. 33 See Jones, P, ‘Medieval Society in its Prime: Ita......
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Table of Cases
...19.6 Adamson v Paddico (267) Ltd [2012] EWCA Civ 262, [2012] All ER (D) 46 (Mar) 4.2, 19.7 ADM Milling Ltd v Tewkesbury Town Council [2011] EWHC 595 (Ch), [2011] 3 WLR 674, [2011] All ER (D) 204 (Mar) 10.5 Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, [1999] 2 All ER 897, HL 6.7, 9......