Re: TH: Spring Songs

 Date: Sat, 15 Feb 1997 22:47:48 GMT
 From: Tim Henderson <tim.henderson@zetnet.co.uk>
 In message <9702151717.AA02612@epfl2>
        gl0039@epfl2.epflbalto.org (GARY LETTERON) writes: 
>   Recently, I discovered (from my co-worker,
> Patricia) that in Washington DC, it is illegal to fill in a tree
> pit (tree well).  How about that?  Wouldn't our lives be sweeter if
> places (spaces) to plant trees were forever (ad infinitum)
> protected by law? 
> Could anybody out there tell us what the situation is in their
> city?  
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 

"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The Act has not, to anyones knowledge, been repealed by the UK 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being as it were repealed by reason of age or disuse....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.