Hitchin Cow Commoners Trust v. Hyde & Ors, Court of Appeal - Chancery Division, December 19, 2001, [2001] EWHC Ch 464

Resolution Date:December 19, 2001
Issuing Organization:Chancery Division
Actores:Hitchin Cow Commoners Trust v. Hyde & Ors

c:\newcases\hitchen cow - v - hyde.rtf

Royal Courts of Justice


London WC2A 2LL

Wednesday 5 December 2001



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(10) BERNARD TOMINEY Defendants

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Mr William H Henderson (instructed by the Treasury Solicitor) appeared on behalf of the Attorney General.

Mr Timothy W E Evans (instructed by the Official Solicitor) appeared on behalf of the Official Solicitor.

The other defendants were not represented and did not appear.

Hearing: 29 and 30 October 2001

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I direct that pursuant to CPR 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


(Mr Justice Lawrence Collins)

c:\newcases\hitchen cow - v - hyde.rtf

Mr Justice Lawrence Collins

I Introduction

  1. Hitchin Cow Common was purchased by trustees in 1880 (with a small addition in 1909) out of investments or cash representing compensation on the extinction of commonable rights over Bury Mead and Cock Mead in Hitchin. Most of Hitchin Cow Common is leased to the Hitchin Town Football Club, and the remainder is used as open space for general recreation. The land is registered as common land under the Commons Registration Act 1965, but none of it is registered as being subject to rights of common.

  2. In these proceedings, which were commenced as long ago as 1990, the primary question is whether trusts created over the land in 1886 pursuant to an order by the Land Commissioners for England under the Commonable Rights Compensation Act 1882 are valid charitable trusts, as the Attorney General contends. The Official Solicitor has been added as a defendant to represent those parties (if any) who would be entitled if the trusts were invalid, i.e. those persons (if any) who would have been entitled to rights of common over the land but for the order under the 1882 Act. The other remaining parties have not participated in the hearing. They are (a) the trustees; (b) Roxanne Investments Ltd., which was added to represent the persons (if any) who would be entitled to grazing rights under the 1886 trusts; and (c) Celeriter Ltd., which was added in its capacity of lessee of part of the land.

    II Facts and legislative background

  3. At a manorial court held on October 21, 1819, the jurors, having enquired what lands in the township of Hitchin were subject to common of pasture for the commonable cattle of the occupiers of messuages, cottages and land within the township, and for what descriptions and number of cattle, and at what times of year, presented findings that the commonable land in Hitchin included land in Cock Mead and Bury Mead. The right belonged to ``the occupier of every ancient messuage or cottage within the township of Hitchin...but no person hath any right of common within this township as appurtenant to or in respect of any messuage or cottage built since the expiration of the 13th year of the reign of Queen Elizabeth [1571], unless the same shall have been erected on the site of an ancient messuage then standing.''

  4. The Land Clauses Consolidation Act 1845 laid down a unified acquisition procedure and code of compensation for the compulsory acquisition of land, including common land. It gave power to the promoters of an undertaking to convene a meeting of parties entitled to commonable or other rights over or in the land for the purpose of appointing a committee, not exceeding 5 persons, of the parties entitled to such rights over or in the land to negotiate with the promoters for the compensation to be paid for the extinction of the commonable rights: sections 99, 102-103. All parties were to be bound by any agreement resulting from the negotiations, and payment to the committee would discharge the obligation of the promoters, who would have the right to have the land vested in them; the compensation was to be apportioned by the committee ``among the several persons interested therein, according to their respective interests...'' (section 104). The Court of Chancery was given jurisdiction to make orders ``in respect thereto, for the benefit of the parties interested, as it shall think fit'' (section 107).

  5. By section 22 of the Inclosure Act 1852, where money was paid to the committee, and the committee was of the opinion that the provisions of the 1845 Act for apportionment could not be satisfactorily carried into effect, the committee could make application to the Inclosure Commissioners to call a meeting of the persons interested in the compensation money for the appointment of trustees of the money and its investment, and for the application of the income for such purposes as the Commissioners might approve. If the Commissioners deemed instructions given at the meeting to be unjust or unreasonable they had the power, by an order under their seal, to give such instructions for the investment of the compensation money and the application of income as they should think fit, including provision for the appointment of trustees.

  6. Under the Inclosure Act 1854, sections 15-17, where a majority of the committee was of the opinion that the provisions of the 1845 Act for apportionment could not be satisfactorily carried into effect, the majority could apply to the Commissioners to call a meeting of the persons interested in the compensation money to determine whether the compensation money should be apportioned. If the meeting so resolved, the Commissioners were to ascertain the names of the parties who were entitled to estates, rights, and interests in the common and commonable lands, and the amount or value of their respective rights.

  7. In 1858 There is some uncertainty over the date, but it is not material. a little over £1069 was paid, for the extinction of commonable rights over part of Bury Mead, to a committee appointed under the 1845 Act. It is not material to this decision who paid the compensation, but it seems from the 1877 and 1886 Orders referred to below that it was received from the Hitchin Local Board of Health, and not also from various railway companies.

  8. Following an application made by the committee to the Inclosure Commissioners under the Inclosure Acts 1845 to 1876, a meeting of the persons interested in the compensation money was held at Hitchin Town Hall on January 10, 1877 at which certain instructions were resolved upon under the 1852 Act. But under the power given to them under that Act, the Commissioners deemed the instructions unreasonable, and made the following Order on October 11, 1877:

    ``That the said sum of £1069.1.3 (after deduction of the expenses incurred by the said Inclosure Commissioners in respect of or in any way incident to the said application of the Committee and to this Order) be paid over by the said Committee to the following persons as trustees thereof, namely, Samuel Lucas of Hitchin aforesaid Brewer, Alfred Ransom of Hitchin aforesaid Farmer, George Alfred Passingham of Hitchin aforesaid Wine Merchant, William Carling the younger of Hitchin aforesaid Newspaper Editor, and William Dixon Lowden of Hitchin aforesaid Gentleman, to be by them invested in the names of any three of their number in Three Pound per cent Consolidated Bank Annuities.


    That the trustees for the time being shall apply the interest and annual produce arising from the said investment in hiring land to be used for grazing purposes by the persons interested in the money so invested (subject to such regulations as the trustees may from time to time make for the convenient use for such purposes of the land so hired) or for the improvement of the existing Cow Commons in the parish of Hitchin aforesaid.''

  9. At some time between 1877 and 1880 the remainder of Bury Mead and Cock Mead was acquired by the Great Eastern, the Eastern Counties and Midland Railway Companies and (perhaps) the Hitchin Local Board of Health. The compensation received for the extinction of commonable rights, together with the 1858 compensation, aggregated about £2,011.

  10. The trustees of the 1858 compensation money and the committee which held the 1880 compensation money (who were substantially the same persons) decided to combine the funds to purchase a new tract of grazing land.

  11. In 1880 the trustees applied proceeds of the investments held by them representing the 1858 compensation, and funds held by the committee in respect of the later compensation ``in the purchase of a tract of...

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