CONSULTATION On a Proposal for a New Act of Parliament to transfer the ownership and management of

to a new Charity

East coast mainline railway

CLOSING DATE FOR RESPONSES: 30 AUGUST 2019

SUPPORTING PAPERS RESPONSES Can be found at By email to: [email protected] By post to: W O Boyes Clerk to the Churchwardens of Church 45 Clifford Road Barnet, EN5 5PD http://www.monkenhadleycommon.net/consultation.html

June 2019 Contents Part 1: Background ...... 1 1 Introduction ...... 1 2 Location of the Common...... 3 3 Physical description of the Common...... 3 4 History of the Common...... 4 5 Legal title to the Common...... 5 6 Finance and the Friends of Hadley Common...... 6 7 The Management Plan ...... 7 8 The Churchwardens' functions...... 7 9 The Commoners as beneficiaries of the statutory trust ...... 8 10 The identity and registration of Commoners ...... 8 11 The functions of the Commoners under the 1777 Act ...... 10 12 Rights of the Commoners and others...... 10 13 Public access, planning and conservation ...... 11 14 The Rules...... 12 Part 2: The issues which need to be addressed ...... 13 15 The main issues ...... 13 Part 3: Effecting change...... 17 16 Mechanics of Change ...... 17 17 Proposals for legislation: Transfer of ownership and management to a third party...... 18 18 Proposals for legislation: other provisions ...... 20 Part 4: Consultation questions and how to respond...... 21 19 Questions for consultees...... 21 20 List of Consultees ...... 22 21 How to Respond...... 23 22 Obtaining documents...... 23 23 Closing Date of the Consultation...... 23 24 Next Steps ...... 23 Part 1: Background 1 Introduction 1.1 This consultation is being carried out by the Management Committee1 of (“the Common”2) on behalf of and with the full agreement of the Churchwardens of the Parish Church of Monken Hadley in the County of ("the Churchwardens"3) which holds the Common in trust. 1.2 The purpose of this consultation is to seek views on proposals for a new Act of Parliament which would enable the ownership of the Common and the assets of the Churchwardens to be transferred to a new charity which would own and manage the Common for the benefit of the general public. 1.3 The Common was established by the Act of 1777. One of the purposes of this Act was to divide up the Chase into smaller areas, including the Common. It is a complicated and almost unreadable document, made worse by the fact that only 9 of the 133 sections relate to the Common. The Act also included provisions about other land in the parishes of Enfield, Edmonton and South Mymms (as it was then spelt). Those provisions are not relevant to this consultation.

“Le Roy le Veult” - “The King Wills it” King George 3rd’s Assent to the Enfield Chase Bill

1 "the Management Committee" - the committee elected in accordance with “the Rules” to be responsible for the management of “the Common” on behalf of “the Churchwardens” and to supervise the work of “the Curators”; “the Rules” are the Rules and Orders made from time to time under section 60 of the Enfield Chase Act of 1777, 17 Geo III c.17 (“the 1777 Act”) for the governance of the Common (the current Rules were made in 1981); and “the Curators” are the individuals responsible (under Rules 10 & 31) for its day to day management. 2 "the Common" - the land called MONKEN HADLEY COMMON, the title of which is registered at HM Land Registry under numbers AGL278910 & AGL359524, and broadly comprises: 1) land which is commonly known as HADLEY COMMON; plus 2) land which is commonly known as HADLEY WOODS; plus 3) certain small areas of land which are leased, and are not accessible to the public. 3 "the Churchwardens" - the “Churchwardens of the Parish Church of Monken Hadley in the County of Middlesex” which as a statutory corporation (not as individuals) is the present owner of the freehold of the Common, which it holds in trust, along with other assets, under the terms of sections 5 and 115 of the 1777 Act. Copies of the 1777 Act, the 1981 Rules and Orders and the Title Plans can be downloaded from the Consultation web page at http://www.monkenhadleycommon.net/consultation.html.

1 1.4 The Common changed a long time ago from being land used for the benefit of surrounding landowners for grazing and other rural activities. The illustrations herein are postcards from the first half of the 20th century. It is now a largely wooded area providing a vital habitat for flora and fauna on the edge of north which is used for recreational purposes by the general public. It has public highways across it, and the East Coast mainline railway physically divides it as can be seen on the plan on the front of this document. 1.5 Unbeknown to those involved with the Common, the 1777 Act was repealed in 1978 on the recommendation of the Law Commission, who believed that it was redundant. After this was discovered in about 1990, the repeal was reversed by section 2 of the Statute Law (Repeals) Act 1993. At that time, the Churchwardens and Management Committee considered the option of asking for a new Act of Parliament but it was not pursued as it was too complicated and costly and there would have been problems with validating intervening acts done by the Churchwardens during the period of the repeal. A petition for a new Act had also been considered in 1978 when the Churchwardens decided that they could no longer nor did they want to undertake the management of the Common but this was rejected at that time on the grounds of cost. 1.6 The fundamental issues which the Churchwardens want to address are, firstly, that the provisions of the 1777 Act and the Rules and Orders made under it are no longer appropriate for the proper management and use of the Common and, secondly, their wish to divest themselves of ownership of the Common. 1.7 The main provisions of the 1777 Act which relate to the Common are: Section 4 - the allotment of land to the Parish of Monken Hadley; Section 5 - the apportionment of 50 acres of the Monken Hadley Allotment to the incumbent of Monken Hadley Parish Church and 190 acres to the Churchwardens in trust for the persons specified; Section 6 - proviso for trees within 60 yards of the boundary of the Common; Section 11 - Pinfolds within the Chase to remain vested in His Majesty; [applies to all parts of the former Enfield Chase] Section 13 - allotments to be accepted as compensation in lieu of other rights; [applies to all parts of the former Enfield Chase] Section 60 - power to a make Rules and Orders; [applies to all parts of the former Enfield Chase] Section 70 - Bringing or defending legal proceedings in the name of the Churchwardens; [applies to all parts of the former Enfield Chase] Section 71 - provisions relating to gates etc.; [applies to all parts of the former Enfield Chase] Section 115 - incorporation of the Churchwardens [applies to all parts of the former Enfield Chase].

2 1.8 The Churchwardens and the Management Committee have agreed that there should be a consultation to obtain the views of interested persons prior to depositing a Private Bill in Parliament to provide for the transfer of the ownership of the Common to a new charity, to provide for the partial repeal and amendment of the provisions of the 1777 Act that relate to the Common, and for related matters. 2 Location of the Common 2.1 The Common is a roughly wedge shaped tract of land about 2.5 km long running east south east from the village of Monken Hadley (Grid Ref: TQ250973) in the ; it tapers from about 0.5 km wide at the broadest point at the western end near to Monken Hadley Church to only about 50 metres at the eastern end at Games Road, (Grid Ref: TQ277967). It is believed to be the 7th largest common in and the largest which is not owned and/or managed by a public authority. 2.2 It is bounded on the northern side by the residential area of in the London Borough of Enfield, at the western end by Monken Hadley Village in the London Borough of Barnet and on the southern side by the residential area of , also in the London Borough of Barnet. 2.3 A map showing the location of the Common is available on the Consultation web page or on request (see contact details at the end of this document). 3 Physical description of the Common 3.1 The area of the Common is approximately 74 ha, of which about 52 ha is mixed semi- natural deciduous woodland with some open glades and the remainder is largely grassland with planted or selected trees. 3.2 Two roads cross the western part of the Common and a third road enters at the Cockfosters gate and runs for about 0.25 km. The roads are linked by a bridleway which forms part of the London Outer Orbital Path - “the London Loop”. The Trail starts from this bridleway and immediately leaves the Common. 3.3 The Common is divided by the East Coast Main railway line, the two parts of the Common being linked by a bridge, and the line and the accommodation roads leading to the bridge are owned by Network Rail. 3.4 There is a spring-fed pond opposite “Gladsmuir”, and the remains of two substantial other ponds which are now silted up and hold water only during the wettest weather. There’s also a lake, known locally as Jack’s Lake, about 70% of which is within the Common, the fishing of which is currently licensed to the Hadley Angling and

3 Preservation Society (HAPS), the remainder being on land owned by the neighbouring Hadley Wood Golf Club. 3.5 Section 60 of the 1777 Act provided that parts of the Common could be leased, and in 1777 or thereabouts a number of plots of land were leased to the owners of adjacent properties, the most significant being the lease of 4 acres of land surrounding the southern part of Jack’s Lake to the owners of the Beech Hill estate (who owned the rest of the lake). Some of these leases have not been renewed over the years - including the Jack’s Lake lease - but others have been and are still in existence. (Given that the public has access to the Common under s.193 of the Law of Property Act, 1925, it would not be possible to grant any new leases even if the Churchwardens were minded to, which they are most certainly not.) 4 History of the Common 4.1 The Common was established from a part of the royal hunting ground called Enfield Chase, which was owned by the sovereign in his or her role as the of Lancaster. The owners of property in Enfield, Edmonton, and Monken Hadley enjoyed certain rights of common (i.e. the right to graze animals) and other rights over the entirety of the Chase. It was “dischased” on 1st January 1778 by the 1777 Act and parcels were allotted in compensation for the rights formerly exercised over the whole Chase which were then extinguished. Of these allotments only the Monken Hadley allotment has survived as unenclosed common. 4.2 In the latter part of the 18th century there was a widespread view that common land should be enclosed and brought into cultivation and the 1777 Act was one of a large number of Enclosure Acts passed during the century. The recitals to the 1777 Act made it clear that the object was to enable the cultivation of the soil of the allotments and it was not intended that they should be held in common in perpetuity. 4.3 The total area of Monken Hadley allotment was 240 acres (97.1 ha) of which 50 acres (20.2 ha) were allotted to the Incumbent (i.e. the Rector) of Monken Hadley as Glebe in satisfaction of tithes accruing due within the Parish. The remaining 190 acres (76.9 ha) were vested by section 5 of the 1777 Act in the Churchwardens as trustees upon trust for the Freeholders and Copyholders previously entitled to a right of Common over Enfield Chase, their lessees, tenants, undertenants and assigns ("the section 5 owners4"). The Common is thus unusual in that it is beneficially owned in equity by a class of Commoners5 (see below). 4.4 The area of the Common was reduced to its present size of about 74 ha. in the mid- 19th century by the acquisition by the Great Northern Railway Company of land used for the construction of its main line into King's Cross (now the East Coast mainline) and for the accommodation roads to provide access to a new bridge over the railway.

4 "the Section 5 owners" - the persons for whom the Common is held in trust under section 5 of the Act. They were the owners of properties or replacement properties on 1 January 1778 who had rights of common over the whole of Enfield Chase. Strictly speaking they are not Commoners in the proper sense of that term but as owners have rights of grazing in severalty because the Common is held in trust for them by the Churchwardens and they hold these rights alongside the Commoners 5 "the Commoners" - the Section 5 owners and other persons having grazing and other rights over the Common

4 4.5 The Commoners continued to exercise their grazing rights over the Common, whilst it was also being used for recreation, until increased motor traffic and the high labour costs of manning the gates following the Second World War rendered this impossible and uneconomic. Since the early 1950s the sole use of the Common has been recreational, although the duty remains for the Churchwardens to ensure that the Rights of Common may be exercised by those entitled to do so. 4.6 The part of Beech Hill Lake within the boundaries of the Common was formerly let by the Churchwardens to the owner of Beech Hill Park for his private use and, later, to Urban District Council who, during their tenure, made it available for use as a public boating lake. The lake is known locally as Jack's Lake.

4.7 The history of Enfield Chase prior to dischasement on 1st January 1778 is covered in "The Story of Enfield Chase" by David Pam (Enfield Preservation Society 1984 ISBN 907318037). 5 Legal title to the Common 5.1 Section 4 of the 1777 Act provides that the allotment of Monken Hadley contains 240 acres, being part of the Chase, and should be set apart in satisfaction of all rights of common and other the rights to which the persons named in that section should be entitled. 5.2 Section 5 of the 1777 Act provides, among other things, that a portion of the Monken Hadley allotment lying on the north side of the road called Camlet Way, containing 50 acres, should be vested in the incumbent of the Parish Church of Monken Hadley for the time being and his successors for ever. (These 50 acres are nothing to do with the Common.) It further provides that: "All the residue and remainder of the said 240 acres ... described as... The Monken Hadley Common ... shall from and after the passing of this Act become and from thenceforth be and remain vested in the churchwardens of the said parish of Monken Hadley for the time being and their successors forever ….." 5.3 The freehold title to virtually all of the land comprised in the Common was registered at the Land Registry with title absolute on 7 March 2013 under title number AGL 278910, the Churchwardens being the registered freehold proprietors. A further tiny plot of land was registered in their ownership with title absolute on 10 November 2015 under title number AGL 359524 as it was omitted from the original registration.

5 A copy of the title plan can be viewed at http://www.monkenhadleycommon.net/consultation.html. 6 Finance and the Friends of Hadley Common 6.1 In spite of the immense value of the Common to the residents of Barnet and Enfield, in 1996 the Councils of the of Barnet and Enfield ceased making annual grants for the maintenance of the Common. This led directly to the formation the following year of a registered charity named The Friends of Hadley Common which makes donations to the Common towards items of expenditure identified as being for the benefit of the public, without which the upkeep of the Common would not be financially viable. All local residents are invited to become members. A noticeboard sponsored by the Friends is pictured above. 6.2 The reason why the Friends was set up as an entirely separate organisation from the Churchwardens was that the Churchwardens did not (and still does not) qualify for charitable status and is therefore unable to boost its income by reclaiming Gift Aid which, of course, the Friends can. If the proposals in this document went ahead, however, the situation will fundamentally change, because being owned and managed by a charity for the benefit of the public, the Common would be able to reclaim Gift Aid on its own account in the future, and the reason for having a separate fund-raising charity would no longer apply. The Executive Committee of the Friends has advised that, in these circumstances, a special meeting would be called to consider whether the Friends should be wound up as a separate charity and its assets transferred to the new charity running the Common, and that members be encouraged to continue supporting the Common through the new charity instead. Meanwhile, until the new charity takes over (if authorised by Parliament) the financial support so generously offered by the Friends is as vital to the Common as it ever has been. 6.3 Other income has derived from the granting of wayleaves across the Common, from the income from leases, and from various miscellaneous sources such as filming fees. A summary of income and expenditure over the last 6 years is set out in the table below. Rule 22 of the Rules makes provision about application of certain income from timber and rents, etc. and about investment of funds.

Monken Hadley Common income and expenditure

Year Income Expenditure Friends’ Contribution (Incl. Friends’ contribution) Regular Special 2013/14 £16,608 £16,154 £3,840 £6,927 2014/15 £10,297 £9,270 £2,964 £2,282 2015/16 £11,671 £15,802 - £4,140

6 2016/17 £12,854 £15,812 £3,960 £3,428 2017/18 £13,263 £11,739 £3,427 - 2018/19 £24,958 £50,723 £3,337 £8,620

6.4 The “regular” expenditure has generally been to cover the cost of grass cutting. Special expenditure was for one-off items such as notice boards, benches, re-laying of the surface of paths and drainage work. 7 The Management Plan 7.1 A five year Management Plan is prepared by the Curators (who are appointed by the Management Committee), with the assistance of others, and is approved by the Management Committee. The current plan runs until 2022, and contains a wealth of information about the Common, including the works that were planned to be undertaken during its currency. These included: repairs to the dam on Jack's Lake (which have now been completed); maintenance of paths; maintenance of the white gates on the public roads onto the Common (listed structures); felling of dead and diseased trees and clearance of invasive species and holly; and reconstruction of the pound. (A copy of the current plan can be downloaded from http://www.monkenhadleycommon.net/consultation.html.) 8 The Churchwardens' functions 8.1 Section 115 of the 1777 Act provides, among other things, that: "the present churchwardens of the said peculiar donative or parish of Monken Hadley shall be and are hereby incorporated and made one body politic and corporate by the name of the Churchwardens of the Parish Church of Monken Hadley in the County of Middlesex; and that [such corporation] shall have perpetual succession, and [with its] successors….. shall be enabled to sue and be sued by [its name] in any court of judicature within the realm of Great Britain". 8.2 Section 115 had the effect of constituting the Churchwardens as a statutory corporation aggregate. That means, like a company, it is a collection of individuals united into one body, with perpetual succession and having the capacity of acting in several respects as an individual, for example by entering into contracts, suing and being sued and exercising the powers conferred on them either at the time of its creation or subsequently. 8.3 The churchwardens change from time to time and as from 7th May 2019 the churchwardens are Barbara Taylor and John Gillman, who support the proposals in this paper, as did the Churchwardens who were in post immediately before that date. 8.4 A corporation such as the Churchwardens which holds land for the purposes of a special Act (e.g. the 1777 Act) cannot alienate the land (in other words, sell it) except as authorised by the 1777 Act, even for valuable consideration. The powers of a statutory corporation are limited to those which are reasonably necessary to the realisation of the purposes for which it is incorporated. The Churchwardens could not therefore dispose of the Common, even for its open market value, unless authorised by further legislation. As stated above, one of the objectives that the Churchwardens wish to achieve is to divest themselves of ownership of the land and this necessitates

7 the promotion of a Private Bill. They also wish to divest themselves of the functions that they have under the 1777 Act relating to the Common.

8.5 Those functions include: Giving consent to removal of or construction of pounds and pinfolds (s.12) Making Rules and Orders (together with 10 or more "ratepayers") (s.60) Calling meetings (together with 10 or more "ratepayers") (s.60) Being responsible for the receipt of income and penalties (s.60) Being entitled to part of penalty/moiety for offences of breaking fences etc. (s.111) 9 The Commoners as beneficiaries of the statutory trust 9.1 Section 5 of the 1777 Act says that the freehold of the Common is held by the Churchwardens as trustees in perpetuity: "…. in trust for and for the sole benefit of the owners and proprietors of freehold and copyhold messuages, lands and tenements within the said parish of Monken Hadley, their heirs and assigns, and their lessees, tenants and under tenants for the time being entitled to a right of common or other rights within the said Chase, according to their several estates and interest therein".

9.2 When a part of the Common was compulsorily purchased by the Great Northern Railway there was litigation to decide to whom the compensation money for the loss of land should be paid. In the end the Commoners received no benefit from this as it was absorbed by the costs of the litigation, including the inquiry into the persons having rights of common. 9.3 Partly as a result of that fiasco, the Commonable Rights Compensation Act (not limited to the Common) was passed in 1882, and section 2 sets out how compulsory purchase compensation should be utilised if common land is acquired. It does not permit any payment to Commoners, but instead says any compensation must be used for purposes such as the improvement of the common and the purchase of land to be added to the common or to be used as a recreation ground for the neighbourhood. 10 The identity and registration of Commoners 10.1 At the end of the 19th century, more than 100 years after the 1777 Act was passed, there was considerable doubt as to the identity of the properties to which common rights were attached and how many stints6 were allotted to each property. It is permissible for stints to be sold by the owner of a property. A committee was set up under Frank Milne, a barrister, “to investigate the question of Common Rights”, and a report was published in 1902 ("the 1902 Report"); a copy can be downloaded from http://www.monkenhadleycommon.net/consultation.html, or can be emailed on request. The ownership and occupancy information was updated in 1935. The Report contains three schedules, which describe three different categories of property to which common rights were attached:

6 A “stint” is the right to graze one “commonable beast” (i.e. animal);

8 Schedule 1: particulars of the 74 properties in respect of which rights of common were allowed by the certificate of the Chief Clerk in the case of Monro v Proctor (i.e. the litigation which followed the purchase of land by the Great Northern Railway, as mentioned above) and of the number of stints allowed by him in respect of each such property7 with the names of the owners and occupiers as they were in 1902, together with the number of stints being claimed (by 1902) in excess of the Chief Clerk’s certificate; Schedule 2: particulars of 8 messuages (houses) proved to have been standing in the year 1777 or to have been erected on the site of messuages then standing, which are not included in the Chief Clerk's certificate, but in respect of which rights of common have been acclaimed with the names of the owners and occupiers, and the number of stints claimed in respect of each such messuage; Schedule 3 - Particulars of 32 properties, not included in the Chief Clerk's certificate, in respect of which rights of common were, in the opinion of the committee which drew up the report, exercisable notwithstanding that the owners had been unable to prove their claims strictly, with the names of the owners and occupiers and the number of stints claimed in respect of each such property. 10.2 The Common was registered as a common under the Commons Registration Act 1965 with the registration number CL43. The register is kept by the London Borough of Barnet in accordance with the 1965 Act and the Commons Act 2006. There are 33 entries , which is far fewer than the number of properties referred to in the three schedules to the 1902 Report mentioned above and many of the entries record persons who were owners of rights in gross (see 10.4 below), not of properties recorded in the Milne Report 10.3 Section 1(2)(b) of the 1965 Act providess that no rights of common are exercisable over common land unless by 31 July 1970 they were registered either under the 1965 Act or at the Land Registry8. It is therefore clear that the Commoners who had not registered by then (or whose predecessors had not done so) are not entitled to any rights to graze animals on the Common. It is less clear whether they retain any of the rights (see below) to take part in the process of approving and confirming the Rules. 10.4 It was customary for transfers of ownership of properties and/or the transfer of stints to be registered with the Clerk to the Churchwardens9 but that has not been done for many years, so the identity of the current owners of the properties and stints is not generally known, and it is possible that most of the Commoners do not know that they are Commoners, (which may be especially true for those with rights in gross i.e. rights which have been detached from the properties to which they originally related). The Churchwardens have erred on the side of caution and this consultation document is being sent or delivered to the addresses of all the properties listed in all three Schedules of the updated 1902 Report (if they still exist), so that all persons

7 The Chief Clerk certified that there were exactly 213 stints in all on Monken Hadley Common 8 In the case of Monken Hadley Common there are no rights of common registered at the Land Registry 9 "The Clerk" - the Clerk to the Churchwardens. There is no mention of the Clerk in the 1777 Act or in the Rules but in practice the Clerk undertakes some of the administration of the Common, inc legal issues, convening and noting meetings

9 who may have been or are Commoners are given the opportunity to comment, even if they are not registered. 11 The functions of the Commoners under the 1777 Act 11.1 The 1777 Act provides the Commoners with the following functions, which are dealt with in greater detail in the section about Rules and Orders below: Approval of Rules and Orders by majority at a meeting (section 60) Confirmation of Rules and Orders by signature of a majority (weighted in proportion to their assessment to the Land Tax10) of owners with rights of common (section 60) Bringing or defending legal proceedings in the name of the Churchwardens (section 70) 12 Rights of the Commoners and others 12.1 One of the questions asked in this consultation paper is about the extent to which the existing rights of the Commoners and other parties need to be preserved under modern circumstances. 12.2 The 1777 Act itself does not specify what the rights of the Monken Hadley Commoners are. It has been assumed by the Management Committee for many years, and Mr Milne's 1902 Report bears this out, that the only general right enjoyed by the Commoners is that of pasture: in other words, a right to graze animals. This is further reinforced by the contents of the current Rules of 1981, which describe in detail how the "stints" (the number of animals that can be pastured by each Commoner) are allocated (Rule 2) and state what types of animal can be pastured (Rule 5) and when (Rule 6). Rule 16 also reserves a right for Commoners to ride horses on the Common. 12.3 The rights of other landowners under the 1777 Act include: Ownership by adjoining owners of trees planted on the Common for shelter or ornament within 60 yards of their houses and lands (section 6); A "right of necessity" enabling existing (as at 1777) adjoining owners and occupiers of land to make access ways over the Common without obtaining an Order from the Vestry of the Parish (i.e. the Churchwardens) (section 71), and a right for Commoners and others affected to complain to the court if there is a breach. 12.4 The rights of under the 1777 Act include: Saving for Pounds, Pinfolds (a pound for stray cattle) and Strayfields to remain vested in and maintained by the Crown; A number of now transitional and spent rights which were exercisable on transition when ownership passed to the Churchwardens in 1777 (sections 32, 35, 36 and 46) A general saving of rights (section 132).

10 From the late 1700s onwards, a steadily increasing number of Commoners were not actually assessed to the land tax, which had the unfortunate effect of disenfranchising more and more of them from a say in the final stage of the approval of the Rules and Orders; the tax was eventually completely abolished by the Finance Act of 1963.

10 13 Public access, planning and conservation 13.1 Apart from the leased areas and a tiny patch of land in the vicinity of JCoSS which was not registered through an accident of history, the whole of the Common is registered under the Commons Registration Act 1965. Since immediately before 1st April 1974 this land was also in a London Borough, members of the public have rights of access to it “for air and exercise” under s.193 of the Law of Property Act 1925, as amended by s. 189(4) of the Local Government Act 1972 (though the right to ride horses is limited to the roads and the bridleway). This situation would not change under the proposed Bill, and the public would still continue to enjoy exactly the same rights as they do now.

13.2 In 2016, and very belatedly, the Management Committee realised that the area of land discussed in the previous section had been wrongly registered as "access land" under the Countryside and Rights of Way Act 2000. (The issue is that CRoW 2000 does not apply to land to which public access is already available under other enactments - specifically in the case of the Common under s.193 of the Law of Property Act 1925.) This was brought to the attention of Natural , and eventually, in late 2017, they advised the Clerk, in writing, that it will correct this mistake, though it’s not at all clear when this is likely to happen. (Incidentally the Common appears not to be alone in having been affected by the same mistake.) 13.3 Part 3 of the Commons Act 2006 imposes strict restrictions on the carrying out of works on common land. The consent of the Secretary of State is required under section 38 for works which have the effect of preventing or impeding access to or over the Common (including relatively minor works like fencing and digging ditches) or for the resurfacing of any part of the Common. will not alter this in any way. 13.4 The Common is subject to - and protected by - the following, none of which will be affected by the proposals: The Common lies within the Monken Hadley Conservation Area. A detailed description of the Conservation Area is given in “Monken Hadley Conservation Area Character Appraisal Statement, 200711”, produced by the London Borough of Barnet. The woodland to the west of the railway line is protected by a Tree Preservation Order. In recognition of its significance as a habitat for flora and fauna, the western half of the Common is classified as a “Site of Nature Conservation Importance -

11 https://www.barnet.gov.uk/sites/default/files/assets/citizenportal/documents/common/planningmonkenha- dleyconservationareaappraisal.pdf

11 Borough Importance – Grade I”. (see Barnet Local Plan Core Strategy, map 11 and also "Nature Conservation in Barnet”, page 54: published by the London Ecology Unit (Ecology Handbook 28) 1997). An area either side of the railway line that bisects the woods is designated as a “Local Area of Special Archaeological Significance.” Some evidence of early settlement, including Bronze Age artefacts, has been found there (see the Conservation Area Character Appraisal Statement referred to above). The five white–painted wooden gates which stand at the main access points to the Common, in Games Road, Hadley Road, The Crescent, Camlet Way and Road, are all included on the statutory list of buildings of historic or architectural merit (Grade II) (see Statutory Listed Buildings of Barnet, January 2010, produced by the London Borough of Barnet).

The Camlet Way gate circa 1928 with the gatekeepers’ hut on the right hand side 14 The Rules 14.1 Under section 60 of the 1777 Act the Churchwardens (along with at least 10 inhabitants of the parish who met certain rating thresholds under the Poor Laws) were given power to make Rules and Orders. The Commoners have control over the process because any such Rules must be approved by a majority of them attending a meeting and then confirmed by a majority of them signing the Rules. 14.2 The most recent Rules were made on 8 April 1981 and these can be downloaded from http://www.monkenhadleycommon.net/consultation.html, or on request. The 1981 Rules were required as the Churchwardens were no longer willing or able to manage the Common and, despite the fundamental change in the use of the Common since 1777, it was felt that the Rules should be based broadly on previous Rules. The main change was to make the two Curators responsible for the day to day management, reporting to an elected management committee.

12 Part 2: The issues which need to be addressed

15 The main issues 15.1 The following are the main issues of concern which the Churchwardens and Management Committee consider can only be comprehensively and permanently resolved by the partial repeal, disapplication or amendment of the 1777 Act, and the provision of modern replacement provisions, including provision for the transfer of the responsibilities over the Common from the Churchwardens to a different body.

Issue 1: The continuing roles of the Churchwardens 15.2 The Churchwardens' role as owners of the Common and involvement in the Management Committee is an anachronism. Although as local residents they are personally interested in and enjoy the Common, they take no active part in its management and they have no interest in continuing their role as owners. If the church were to become redundant, there would be no Churchwardens. 15.3 Proposed solution: A Private Bill to transfer the ownership of the Common and any residual functions of the Churchwardens relating to the Common to a different body. The Churchwardens' proposal is that the body should be a charity, the objects of which would, in essence, be to own and run the Common for the benefit of public recreation and nature conservation. The Bill would include safeguards to prevent the ownership of the Common being further transferred to any other body with incompatible objects, and possibly to require the consent of the Secretary of State to a transfer.

Issue 2: Management Committee Constitution and validity of Rule Making Procedure 15.4 Section 60 of the 1777 Act enables the Churchwardens, together with any 10 or more other people, to make Rules and Orders about the Common. The 10 or more additional members must reside within the Parish of Monken Hadley and must each be assessed to the Poor Rate for the relevant parish in which they reside at the rate of £10 per annum or upwards. Section 60 also provides that any new Rules must be approved by a majority of Commoners attending a meeting and must also be confirmed by a majority of Commoners who are assessed to the Land Tax signing the Rules. 15.5 The Common needs to be and should be run by persons who have an interest in its welfare, not by a random group established by reference to an Act passed in 1777. The Committee as it is currently constituted does not comply with the terms of section 60 and in any event does not have power to make Rules, which can only be made in accordance with the procedure prescribed in the 1777 Act. Properties to which rights of common are attached are scattered around Monken Hadley and High Barnet and under the 1777 Act and the Rules the Commoners could take control of the management of the Common for purposes unacceptable to those who have a genuine interest in its use for public benefit. At the time of the 1777 Act, the

13 Common was established for private benefit but that has changed. Until the 1980s there was a body of Commoners who took an active interest in the Common and as many as 30 often attended the AGM of the Commoners but that is no longer the case. It has sometimes been the case that no Commoner has attended the AGM which means that the Committee is not properly elected in accordance with Rule 30 of the Rules and it cannot therefore properly appoint the Curators. 15.6 With the Poor Laws and Land Tax having been repealed many years ago, the references to them in section 60 are obsolete and have been ignored. In an attempt to regularize that position, the Churchwardens applied to DEFRA in August 2016 for a statutory instrument under section 149 of the Local Government and Housing Act 1989 to amend the references in section 60 to the Poor Rate and Land Tax. With assistance from Rt Hon , the local MP, the Department agreed to consider the application when time permits. Unsurprisingly, this has not been seen as a priority, and no progress has been made. It seems highly unlikely that the situation will change in the foreseeable future. In any event, this change on its own would not address most of the issues currently faced. 15.7 There is also some doubt about whether some of the Rules, particularly those relating to the control of activities on the Common (e.g. Rules 15 to 20) are within the rule making powers of the 1777 Act. 15.8 Proposed solution: The proposed legislation to effect a transfer of the Common and other functions from the Churchwardens to a charity will enable that charity to take over ownership from the Churchwardens and management functions from them and the Committee without any involvement by the Commoners. This will reflect the reality of the situation now and as can be sensibly envisaged in the future. The legislation would repeal the outdated provisions relating to the making of Rules and hence revoke the existing Rules.

Issue 3: Identifying the Commoners 15.9 Rule 4 provides that in the event of a sale of a property to which a right of common is attached, notice of the sale should be given to the Curators, who must keep a register, but, with one exception, no such notice has been given since 1979. The Rule further provides that in the absence of notice to the contrary, the Curators must assume that the occupier of a property to which any right of common is attached is entitled to exercise such right. Whilst it is accepted that in respect of grazing rights over the Common it is the responsibility of a Commoner to ensure that the Commons Register kept by Barnet Council is kept up to date, the position is not clear as regards the functions of the Commoners relating to the approval and confirmation of the Rules and the appointment of the management committee. The Committee does not know the identity of the vast majority of persons entitled to exercise those functions. 15.10 Proposed solution: By repealing the provisions of the 1777 Act which provide the Commoners with functions relating to the management of the Common (i.e. control of rule making) the issues raised by the inability to identify who the Commoners are will disappear.

14 Issue 4: Finances 15.11 At present the Churchwardens hold substantial financial assets and receive donations from the Friends from time to time to cover some expenditure. Most of the physical labour and all the administrative work to maintain the Common is undertaken by unpaid volunteers and these different methods of support have enabled the assets of the Common to increase. As mentioned earlier, the land is held in trust by the Churchwardens for the benefit of the Commoners and the view could be taken that the Commoners are therefore also the beneficial owners of the financial assets. However, the preferred view is that the Churchwardens hold the financial assets for the purpose of maintenance and improvement of the Common. There is no requirement in the 1777 Act for any surplus income to be paid to the Commoners, and none has been paid in living memory. It is used for the benefit of the Common (in accordance with Rule 22). 15.12 Whilst a principle of modern trust law is that the beneficiaries can call for the realisation and distribution of the assets of a trust, it is fundamentally unacceptable that there should even be a prospect that the financial assets, greatly increased by reason of the Friends contributions and voluntary labour, are beneficially owned by the Commoners. If the upkeep of the Common had been undertaken at commercial rates and there had been no support from the Friends, expenditure would always have exceeded income. 15.13 The Commonable Rights Compensation Act 1882 provides some support for this approach. The purpose of that Act was to make provision about what should happen to compensation payable for loss of common rights when common land is acquired compulsorily. Rather than paying it to the owners of the rights of common, it applies it for specific purposes which benefit the common itself. 15.14 Proposed solution: legislation providing for the transfer of ownership and management responsibilities to a new charity would make clear that all existing funds and assets and future income should be applied towards the preservation of the Common as a place of recreation for the benefit of the public and for nature conservation.

Issue 5: Existing and future use of the Common is incompatible with the existing legislation 15.15 The Common was grazed into the 1950s but it seems very unlikely that it will again be used for that purpose, however pleasant it would be ornamented with cows instead of cars. It has no commercial value and as set out elsewhere in this document the public have rights to use it for recreation under section 193 Law of Property Act 1925. In reality, being a Commoner is no longer of any commercial value. 15.16 Proposed solution: Again, the solution to this issue is the proposal for transferring the ownership and management of the Common to an organisation that has the interests of the public and nature conservation at its heart.

15 Issue 6: Rules for governing behaviour on the Common and enforcement of breaches of the Rules 15.17 The Rules provide for penalties (not exceeding £5) to be imposed in respect of certain breaches of the Rules, but there is no mechanism for the enforcement of those penalties. The Churchwardens have no specific power to prosecute nor would it be economic for them to do so. Unenforceable rules are almost as unsatisfactory as no rules. 15.18 As mentioned earlier, it is not certain that the 1777 Act gives power to make Rules for the governance of the public in its use of the Common for recreation. 15.19 Proposed solution: The proposed legislation could give the charity modern powers to make byelaws about the use of the Common which are enforceable in the courts. However, it is acknowledged that this may give rise to public policy concerns about such powers being exercised by a non-statutory body. Also, it is unlikely that the charity would have the necessary resources or expertise to enforce byelaws. For that reason, it is unlikely that this suggestion will be adopted. 15.20 An alternative would be for the local authority, Barnet Council, to make byelaws governing the open space. As the Common is not in the Council's control or ownership, this may need new legislation. The Council could also make a Public Spaces Protection Order to cover the Common under section 59 of the Anti-social Behaviour, Crime and Policing Act 2014 to prohibit certain activities on the Common. 15.21 A further alternative could be a rule-making power for the charity, giving the ability to regulate the use of the Common but enforceable in the civil courts, for example by way of injunction.

Issue 7: Need for all the legislation to be put in modern, easy to understand language 15.22 The few sections of the 1777 Act which apply to the Common are verbose, use antiquated language and are difficult to interpret in many respects. If the opportunity is being taken to deal with the issues mentioned above by way of promotion of a Bill in Parliament, then the opportunity must be taken to modernise all the relevant provisions of the 1777 Act. 15.23 Proposed solution: To repeal those parts of the 1777 Act which make provision about the management of the Common and where necessary cast them in modern language in a new Act of Parliament.

16 Part 3: Effecting change

16 Mechanics of Change 16.1 This section deals with the "how" of any legislative change and a number of alternative methods are set out. Section 17 then deals with the "what": the detail of what any legislation should provide. Option 1: Repeal of all the relevant parts of the 1777 Act with no replacement 16.2 As mentioned in the introduction, the 1777 Act was repealed relatively recently by a Statute Law (Repeals) Act, and then reinstated when the Churchwardens and Management Committee realised what had happened. Wholesale repeal of the relevant parts of the 1777 Act without replacement is unacceptable, because the governance of the Common would be left in limbo. Option 2: Repeal of all the relevant parts of the 1777 Act and replacement with modern provisions 16.3 This option has the attraction of providing the reader of the legislation (including those who will be expected to implement it) with a distinct piece of legislation which is easier to understand. The details of what such legislation could contain are set out in paragraph 18. Option 3: Piecemeal amendment of the relevant parts of the 1777 Act 16.4 Whilst this option has the attraction of enabling all the issues to be dealt with, it would result in a hotchpotch of legislation drafted in 1777 language mixed with modern language. This would not have the benefit of making the legislation easier to understand. Again, the details of what such legislation could contain is set out in Section 18. Option 4: An Order under section 149 of the Local Government and Housing Act 1989, amending section 60 of the 1777 Act by replacing references to the Poor's Rate with references to Council Tax 16.5 As mentioned above, the Churchwardens have asked DEFRA to make an Order under section 149 to achieve this change. 16.6 However, simply substituting references to council tax (or any subsequent tax) in section 60 in place of references to the Poor Rate and Land Tax will not overcome the more significant issues that would remain in section 60. New Rules and Orders would still not be able to be ratified, because section 60 requires that they must be approved by the major part of the Commoners assembled at a meeting and afterwards confirmed and signed by the major part of Commoners. The problem with that is the identity of the owners and occupiers of the properties in the Milne schedules is largely unknown (though it is accepted that those with registered title could be obtained), and most and possibly all of the persons named in the register held by the Local Authority under the 1965 Act have died. Also, those who hold their rights "in gross" do not have a vote and it is unlikely that a majority of Commoners would be interested in attending a meeting to confirm and sign new Rules. A notice of the annual general meeting of the Management Committee is posted on the

17 Common notice board but in recent years no Commoner, apart from those on the Management Committee, has attended an AGM. 16.7 Whilst the amendment of section 60 may resolve some of the problems in relation to the passing of Rules and Orders and the election of committee members, it will not resolve the other problems. Option 5: Retain the 1777 Act and establish a management committee appointed by the Churchwardens 16.8 The Churchwardens and the Management Committee have considered the possibility of the Churchwardens appointing a committee under the provisions of the Trusts of Land and Appointment of Trustees Act 1996 so that the committee would be acting as the agents of the Churchwardens in the management of the Common. This was not considered to be appropriate for the following reasons. 16.9 Firstly, the Churchwardens would have to take on an important supervisory and legal role which it is not prepared to undertake. It would also be contrary to a policy decision by the Diocese of London and the Churchwardens which led to the passing of the 1981 Rules, whereby the management of the Common was entrusted to the committee and the Curators. 16.10 Secondly, section 6(1) of the 1996 Act provides that for the purpose of exercising their functions as trustees, the trustees of land have, in relation to the land subject to the trust, all the powers of an absolute owner. However, Section 6(6) provides that: "the powers conferred by that section shall not be exercised in contravention of ... any other enactment or any rule of law or equity". 16.11 Any management scheme instituted under this section would be in conflict with section 60 of the 1777 Act, therefore contravening section 6(6). 16.12 Further, the appointment of a committee under the 1996 Act would do nothing to resolve the other deficiencies of the 1777 Act outlined in this consultation document. At the very best, it would provide a partial solution. Option 6: Do nothing 16.13 For the reasons set out in this document, it is not proper or sensible for the Churchwardens to do nothing, as this will not resolve the issues identified. Currently there are questions as to whether the management committee is lawfully elected for all the reasons mentioned earlier, and there is no likelihood of that situation being resolved in the near future. It is strongly arguable the Churchwardens will be in breach of trust if they fail to take action to resolve all the difficulties in the only comprehensive way available, namely a new Act. 17 Proposals for legislation: Transfer of ownership and management to a third party 17.1 As mentioned earlier, one of the main issues to be tackled is that the Churchwardens have no interest or desire in retaining the freehold of the Common and they wish to divest themselves of ownership. This will have the major advantage of placing ownership and management of the Common in the hands of one organisation which will have a real interest in it and, unlike the Churchwardens whose primary concern is the Church, no other purpose. This is not intended as a criticism of the current Churchwardens and their many predecessors to whom a large debt of gratitude is

18 owed for preserving the Common since 1777. It is believed to be the only part of the Enfield Chase which has been preserved as common land and saved from development. 17.2 An obvious candidate for ownership of the Common would be a local authority, which could add the Common to an existing portfolio of open spaces and apply economies of scale and expertise to its management. The local authority is the London Borough of Barnet. 17.3 If the Council were willing to take over the management of the Common, there is a substantial danger that the financial support and voluntary work from locals would diminish. Ownership and management by a charity which is owned and run by local people offers a real opportunity for localism in action and, despite very limited resources, has worked well for nearly 250 years. It is also questionable whether any local authority would want the financial obligation. One option which could be considered is the transfer of the Common to a local authority and then the granting of a long lease over it to a charity, but this would impose an unnecessary layer and could lead to complications. 17.4 Another option would be an appropriate body, whose objects are to conserve the Common, such as the preferred option of a charitable incorporated organisation (“CIO”), or a charitable company limited by guarantee (“CLG”),a community interest company or a new statutory body set up by the new legislation, for example a body of conservators. 17.5 In any of those cases, it is important to note that because the land is subject to s.193 of the Law of Property Act 1925, the rights of the public to use it for recreation in perpetuity would be preserved. As mentioned earlier, appropriate safeguards could be included in the legislation to prevent the new owner from disposing of the land without further statutory authorisation, for example by the Secretary of State. 17.6 The legislation could either leave the decision open to the Churchwardens as to who should succeed as owner or the legislation could specify the new owner. 17.7 There is a local example where one of these structures has proved to be successful. Manor Association ("TMA") is a CLG, established in 1954 when the option of a CIO was not available, and a registered charity. Its task is to own and manage the common land in Totteridge, mainly along Totteridge Lane, and is within a few miles of the Common although much smaller and physically very different. As a mark of TMA’s achievements and its standing in the community, Barnet council is in the process of transferring the management of a separate local nature reserve (Darlands) to TMA. 17.8 TMA is managed by a council of not less than 12 and not more than 24 which normally meets three times a year. Its members pay an annual fee of not less than £25 and membership is open to residents of Totteridge. It has an annual general meeting at which the members of the council are elected and the London Borough of Barnet has the right to appoint two local councillors to the committee. One of the appointees is a local resident who is currently the leader of Barnet Council. The company has very substantial assets and income and is in the fortunate position of being able to pay for work which, on the Common, generally has to be done by the Curators and volunteers. The owners of a substantial number of the properties that

19 front Totteridge Lane must pay for access from the highway across that common and this provides a regular annual income supplemented by investment income and donations - one donor has contributed more than £300,000 in the past two years. 17.9 As is invariably the case with organisations of this type, most members of TMA do not take an active part in running but the company does provide a democratic and accountable structure and it has charitable status. Its membership requirements are much more suitable for modern life and the future than the current "electorate" of Commoners who, unless they are members of the Friends, take no interest in and do not make any financial contribution to the upkeep of the Common. 17.10 This CLG structure or preferably, because of the modest income and expenses of the Common, a Charitable Incorporated Organisation (CIO) would be very suitable if a new Act permits the transfer of the Common to a charity whose objects include the maintenance of the Common as a public open space and area for nature conservation. A CIO has the added benefit of being a more modern structure which was not available at the time that TMA was formed. It is regulated by the Charity Commission and does not have to comply with Companies Act legislation. If it is desired that the link with the Church should be maintained, the governing document of the organisation could give the churchwardens (as well as local authority councillors and representatives of other bodies) the right to be on the management committee or council. Membership of the charity could be open to all residents and businesses within, say, 2 miles of Monken Hadley Church. 18 Proposals for legislation: other provisions 18.1 If the Churchwardens promote a new Act, existing rights of necessity over the Common from their dwellings to the highway must be retained but (as is the case already) any new properties that want a right of way will have to pay an annual rent and/or premium. This would probably be made explicit in any new legislation. 18.2 The grazing rights of Commoners (despite never being used) would be preserved by the legislation. Although it is unlikely that other rights (for example Crown rights) are likely to be affected by the proposed legislation, saving provisions would be included if necessary. 18.3 As for the making of enforceable Rules and Orders, then the options would be to provide the charity with power to make rules or byelaws or to make provision in the legislation to enable Barnet Council to make byelaws. Byelaws would have the advantage of being enforceable in the magistrates’ court by the Council, whereas orders would rely on civil enforcement, presumably by injunction.

20 Part 4: Consultation questions and how to respond

19 Questions for consultees Consultees are asked to comment on any or all of the following: 19.1 The proposal to transfer the ownership of the Common from the Churchwardens as trustee to a new body ("the transferee"). 19.2 The proposal that the transferee own the Common free of the existing trusts in favour of the Commoners. 19.3 The proposal that the transferee should be a charitable company limited by guarantee or (preferably) a charitable incorporated organisation whose objects would include the preservation of the Common as a place of public recreation and nature conservation. The proposal would be that the legislation would require successor transferees (for example in the case of insolvency) to be a body with similar objects (possibly requiring ministerial consent). 19.4 Please mention any alternative options which you think would be better, for example the local authority (potentially with powers to lease the ownership of the Common to a third party), a community interest company or a statutory body established by the new legislation. 19.5 The proposal that the existing Commoners should play no further part in the management of the Common, by repeal of the rule making power in section 60 of the 1777 Act, and by abrogating all Rules made under section 60. 19.6 The proposal that the Commoners' rights to use the Common for grazing be preserved. 19.7 The proposal that the transferee should have powers to make new rules regulating the use of the Common for grazing. 19.8 Whether the transferee should have powers to make byelaws regulating the use of the Common as a place of recreation 19.9 Whether the powers of Barnet London Borough Council should be extended to enable it to make byelaws regulating the use of the Common (noting that this may not be something that the proposed private bill could make provision for unless the council joined in its promotion). 19.10 The proposal that the transferee should inherit the Churchwardens' ability to grant (and require payment for) new rights to make access ways across the Common for adjoining owners. 19.11 The proposal to repeal the provision in the 1777 Act which provides that trees that are planted on the Common for shelter or ornament within 60 yards of adjoining owners' houses and lands are owned by that adjoining owner. 19.12 The proposal not to give to the transferee the Churchwardens' powers: to give consent to the removal or construction of pounds and pinfolds to call meetings of Commoners 19.13 The proposal to repeal various minor and spent provisions in the 1777 Act, including:

21 Commoners' right to exercise existing rights until first Rules made (s.60) Commoners' right to bring or defend legal proceedings in the name of the Churchwardens (s.70) Penalties for breaches of pre-existing rules can be enforced until first Rules made (s.60) Method of recovering penalties (s.112) Justices proceedings (s.113) Keeping sheep prohibited for 7 years after inclosure (s. 116) Grazing prohibited for 7 years after inclosure (s. 116) Appeals to Quarter sessions (s.128) Limitation of actions (s.129) General issue to be pleaded (s.130)

20 List of Consultees Owners of properties listed in Schedules I – III of the 1902 Milne Report (updated to 1935) The Bishop of London The Bishop of Edmonton London Borough of Barnet London Borough of Enfield The Mayor of London The Woodland Trust The Herts and Middlesex Wildlife Trust DEFRA The The Ministry of Housing Communities and Local Government The Attorney General's office The Charity Commission The Crown Estate The The Ramblers Open Spaces Society The councillors of the East Barnet & High Barnet Wards of Barnet Council, The councillors of the Cockfosters Ward of Enfield Council The Rector of St Mary the Virgin, Monken Hadley The Friends of Hadley Common Monken Hadley Common Conservation Volunteers The Barnet Society Hadley Residents Association Hadley Wood Association Barnet Residents Association Monken Hadley Primary School

22 Mount House School Rt Hon Theresa Villiers, MP for Mr. Bambos Charalambous, MP for Enfield Southgate 21 How to Respond By email: to [email protected] By post: to W O Boyes, Clerk to the Churchwardens, 45 Clifford Road, Barnet, EN5 5PD 22 Obtaining documents A paper copy of this consultation document and an emailed copy of documents referred to can be requested by email or post at the addresses above and can be downloaded from: http://www.monkenhadleycommon.net/consultation.html The documents referred to are: The Enfield Chase Act 1777 The Land Registry title plans of the Common F A Milne - Report of the Committee to investigate the question of Common Rights (1902) The Rules and Orders 1981 The Management Plan 2016/17 to 2021/22

23 Closing Date of the Consultation The consultation will close on 30 August 2019 at 11:59 24 Next Steps 24.1 Following the close of consultation, a summary of responses and conclusions paper will be produced and placed on the Common website. If you would like to receive a copy of this paper please mention it in your response, or separately in writing to the email address or postal address in paragraph 21 above. Please provide the email address to which it should be sent (or postal address). 24.2 If the Churchwardens decide to promote a private Bill it is likely that it will be deposited in Parliament on 27 November 2019.

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