Re: TH: Spring Songs

 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) ...

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 Richard Tryzno Ellsberry | [http://flora.com] | Baltimore / USDA Zone 7
 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 
> "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.