Proc. llampsh. Field Club Archaeol. Soc. 41, 1985, 261-268.

SOUTHAMPTON COMMON: THE LEGAL REGIME

By ALEC SAMUELS

ABSTRACT inhabitants of Southampton and persons A brief outline of the history of Southampton resorting thereto. It has to be equipped with Common and a survey of relevant legislation forms such statues, fountains, seats, and other the framework for a discussion of contemporary ornaments and conveniences for public use problems arising from conflicts of public interest and and not more than five lodges on the Common of different conceptions of amenity. The current as the corporation from time to time think fit. legal position is explained and recommendations are made for the reform of the law to meet modern needs. No other structures or buildings were authorised and no parts of the Common may be taken or used for any other purpose (28 & 29 Vic cl62 s72). Under the Southampton THE LEGAL FRAMEWORK Corporation Act 1910, the Common became a Southampton Common, now about 350 park or pleasure ground under the public acres, belongs to the City of Southampton health acts, which together authorised the under a grant oi 1228 (Thomson 1979, 1-49). provision of places for public recreation, The Common has been reduced by enclosure prescribed powers regarding open spaces, and and encroachment, notably the sites of the authorised limited closure, the making and Cowherds inn and Southampton Zoo, which enforcing of byelaws. It reiterated that 'Noth­ are now no longer part of the Common. Land ing contained in this Act or in the Public was also taken in the nineteenth-century for a Health Acts shall authorise the erection of cemetery and reservoirs (now disused). From buildings on the Common or in the Parks . . .' 1228 until at least 1925, communal rights, (10 Edw VII & 1 Geo V c99; 38 & 39 Vic c55 especially to pasture animals, were exercised si64; 53 & 54 Vic c59 ss44-45; Public Health on the Common by the burgesses, but no such Act 1961 s53(3); 39 & 40 Vic c56; 62 & 63 Vic rights were registered under the Commons c30 slO). Public access for air and exercise was Registration Act 1965 and all are therefore required by the Law of Property Act 1925, extinguished. With the decline of the which also forbade the erection of any building Common's original function in the nineteenth or fence or the construction of any work century, Southampton corporation obtained whereby access to the Common is prevented or statutory authority to prevent commercial impeded (15 Geo V c20 ss 193-94). Finally, the development and, on public health grounds, to Southampton Corporation Act 1931 preserve the Common as an open space for prohibited vehicles on the Common except on public recreation. the roads there listed: The Avenue, Cemetery The Southampton Marsh Act of 1844 stated Road, Highfield Avenue, Oak Mount Avenue, that the Common should be public land in Winn Road, Westwood Road, Highfield Road, perpetuity to be preserved as an open space for Northlands Road, and the road from the the public advantage of the inhabitants of Avenue to the tramway depot. This section Southampton (7 & 8 Vic c54 ^sl 16-7). The was repealed in 1971 (21 & 22 Geo V c99). Southampton Marsh and Markets Act 1865 provided that the Common be devoted and CONTINUING CONTEMPORARY kept exclusively as a park, garden, pleasure ground, play ground, and other open space for PROBLEMS the general and public advantage of the Southampton City Council manages the 262 HAMPSHIRE FIELD CLUB AND ARCHAEOLOGICAL SOCIETY

Common as trustee under the terms of the south end near Cemetery and Northlands legislation. It may make byelaws compatible roads, which has served as a nursery school with the statutes, but cannot act in and is now an environmental studies centre. contravention of the law, which it has a legal The only buildings permitted under the 1865 responsibility to enforce. In practice the Act are lodges, Holly Lodge at Bellemoor gate Common has often been used in ways that are being now the sole survivor. Buildings erected strictly illegal and should not have been under emergency legislation should have been allowed. Heavy use causes damage to the demolished when the emergency ended. They surface and animal and plant life. Adjoining cannot legally be left there and converted to landowners try to encroach upon public land another use, however socially useful or and byelaws are unenforced. There is pressure convenient for the enjoyment of the Common. to widen roads, provide car parking, and The only possible justification is a provision in improve public transport. Some of these other the 1875 Public Health Act, which permits needs, for example for car-parking, have been 'any urban authority' to 'improve and main­ presented as necessary for public recreation, tain land for the purpose of being used as but conflict with the terms of the statutes. public walks or pleasure grounds by any Indeed, the concept of a park and ideas of person whatsoever', which has been held to recreation have changed substantially since justify a caretaker's bungalow (Attorney- the passage of the relevant statutes. There are General v Poole Corporation, 1936, 1938; conflicting demands between pedestrians and Attorney-General v Sunderland Corporation, cyclists, between those wanting fairs, shows, or 1876). The caretaker works on the pleasure circuses and those with diametrically opposed ground and improves and maintains it, wishes. There are commercial concerns anx­ whereas the study centre does not enable the ious to exploit organised leisure activities on Common to be improved in any way. Fur­ the Common. Groups and societies have thermore the Common is governed by its own developed to try to persuade the City Council law, which is specifically and intentionally to permit the Common to be put to new uses restrictive as far as buildings are concerned: it and are opposed by others averse to change. is not just any old pleasure park. If a building Through inaction or at its own initiative, cannot be erected anew for any of these laud­ the City Council has permitted some innova­ able purposes, then a building erected for tions, such as the legal Southampton Show, some other purpose, such as war, cannot be which entails the closure of part of the adapted and used for such laudable purposes. Common to the general public. Most changes, The City Council is under an implied legal even those of doubtful legality, have provoked duty to look after the Common properly. Yet only criticisms, but others have resulted in the Council and its lessees and licensees, for litigation. The resultant judgements and whom the Council is responsible, constantly indeed legislation has, however, only clarified damage or allow to be damaged the surface of certain issues in a piecemeal way, leaving the the Common and fail to restore it properly. main issues and the current legal position Wet weather, heavy lorries, extended use, unclear. inadequate or incompetent restoration, and insufficient time-lapse before renewed use all During both World Wars, under the Defence combine to cause permanent damage in many of the Realm legislation, the Common was place, such as deep ruts and bare patches. It is used for military purposes and huts, camps, a breach of statutory duty for the Council to air raid shelters, and a decontamination centre cause or to allow this to happen. Contracts were erected. All should have been removed with lessees and licensees could and should after the War and nearly all have been, albeit provide for cancellation by the Council, when sometimes belatedly. There still remain the air wet weather has made the surface very soft, for raid shelter to the north-west of the subway permitted 'maximum' use to prevent serious and the former decontamination centre at the SAMUELS: SOUTHAMPTON COMMON - THE LEGAL REGIME 263 damage, and for restoration by lessees and taken by the Council. Quite correctly, licensees to a specified minimum level within a however, the Council has erected posts at the specified maximum time with penalties for registered boundary of the Common to default secured by advance deposit. As at prevent vehicles illegally crossing it to no. 5 Mayflower Park (Samuels 1984), the 'before Highfield Road, a house with no other and after' problem causes argument: precisely vehicular access (SOC, counsel's opinion, how much time before and after is an exhibitor 1981). or show organiser allowed for erecting and No byelaws exist regarding animals on the removing his tents? The worst offender is the Common, but 'walking a bear' or 'walking an Council itself. For obvious commercial reasons elephant' is probably illegal as incompatible tent-hire contractors and exhibitors minimise with and interfering with the ordinary the time their equipment remains on the enjoyment of the Common by the public. Common, whereas the Council has installed Captive animals ought not to be allowed on former tramway poles carrying high tension the Common, except for direct passage in electricity from June until August inclusive. locked vehicles to and from the Zoo or to any The byelaws are not generally known to the lawful circus held on the Common. All keepers public. Although they are exhibited on the of dangerous wild animals must be licensed Common and simple specific warnings are under the Dangerous Wild Animals Act 1976. posted near the lake, the language is not Indeed, it would not be unjust or oppressive to readily intelligible to the ordinary person and ban dogs from going on certain areas, such as the boards are so inadequately protected that ornamental gardens, enclosed parts or chil­ the byelaws are often illegible or virtually dren's playgrounds, where good and obvious illegible. As the byelaws are not enforced - no reasons for prohibition can be shown (Burnley v prosecution is known ever to have been England, 1979). At present owners must keep brought for a byelaw offence on the Common — dogs under proper control and are thus there are frequent infringements. prevented from causing annoyance to any person and from worrying or disturbing any The use of metal detectors is permitted, animal or water-fowl, but nevertheless dogs even though they lead to damage to the surface are not prohibited from entering the cemetery in contravention of clause 9 prohibiting the or ornamental lakes and thus driving away removal, cutting or displacement of soil or ducks and geese (SOC, byelaw 11). turf, and although the owners keep finds from public land and incompetently disturb As transport authority, the Council has archaeological sites. Under clause 6 vehicles constructed a bus stop and tarmac surface on may not be used on the Common. Except at the Common at Highfield Road. This is illegal authorised and controlled entry points, access because it encroaches on the Common and was around the perimeter is physically prevented constructed mainly for residents using the bus in part by earth banks, in part by metal 'shin service and not users of the Common. rails', now dilapidated, and partly by 'dragons Tentative Council proposals for a bus standing teeth', stout wooden posts spaced at appro­ and station on the Common in the angle of the priate intervals. As long as gaps remain and Avenue and Winn Roads are also illegal. Most until the protection is continuous, complete seriously, road surveyors and engineers, some and closed, trespassing vehicles can still get on councillors and others wish to widen The the Common, especially during public events. Avenue, that section of the A33 trunk road In the absence of leisure camping sites in the running through the Common. The A33 is the city, so do cars, dormobiles, caravans and responsibility of the Department of Transport. tents. All the land near and around the Zoo Hampshire County Council, the local highway (closed 1985) is part of the Common, yet authority, has granted an agency to employees and visitors to the Zoo repeatedly Southampton City Council. Although marked parked there and no action against them was out in places for two lanes in each direction, SOUTHAMPTON COMMON

COMMERCIAL ADVERTISING BOARD

SITE OF PROPOSED ILLEGAL CAR PARK, 1970

500 metres _j

Fig 1. Southampton Common: since this drawing was submitted, a new illegal structure has appeared on the corner south of Burgess Road and west of The Avenue; the illegal structure on Furzedown Road has been removed; and the Zoo has closed. SAMUELS: SOUTHAMPTON COMMON - THE LEGAL REGIME 265

The Avenue is really too narrow. The tion. They are not the ornaments and construction of a dual carriageway would conveniences for public use permitted under involve substantial tree felling and loss of land the 1865 Act and do not in any way promote or from the Common. For some years the City enhance the enjoyment of the Common. It may Council has been clearing the trees between be argued that the Council, if they think it Northlands Road and Stag Gates and necessary or expedient, may advertise their northwards to the Cowherds. Dutch elm own (sic) entertainments to be held anywhere, disease enabled many trees in The Avenue to under the Local Government Act 1972, but it be felled in the 1970s. At the initiative, and is very doubtful whether this general power through the generosity, of the City of can be used to derogate from specific Southampton Society, replanting took place at prohibitions and limitations in respect of spe­ the western side of the southern end of The cific land such as the Common (SPPS Avenue and also further north, but although counsel's opinion 1976). the Council insisted that the trees be set back The law does not however appear to prohibit from the road because there were underground a measure of commercial activity being carried cables there, it was suspected that it was to on under the 'closure' provisions, but it is facilitate, or to prevent impediment to, the submitted nevertheless that there will come a eventual widening of The Avenue (SPPS point at which the commercial element papers). becomes so obtrusive and so predominant as The definition of public recreation in the to constitute a breach of the law wholly relevant legislation does not permit a incompatible with public enjoyment of the bandstand, which would be illegal. A Council Common. The Southampton show and funfair, proposal in 1981 to seek express statutory for example, now include stalls selling things power was not pursued. The byelaws do, as at a market and in 1982 and 1983 the however, permit cycling on certain paths. Anx­ Southampton Show included a motor show. ious to facilitate cycling to and from work and school, especially to areas like Lordshill north­ west of the Common, the Council proposed a CONFLICT network of cycle tracks. The proposals require Such problems, actual and potential, arc widening existing paths, constructing new commonplace. Litigation has occurred in cases ones, and amending the byelaws. While of 'saturation use', where conflicts of interest enjoying some support from the public and have become acute between commerce and amenity societies, the increase in cycling amenity or between different forms of amenity, would to some extent conflict with pedestrians between the Show and the peaceful enjoyment and change the character of the Common. of the natural environment. Proposals (1985) to amend the byelaws in In contravention of the law, the Council order to create a shared pedestrian and cycle proposed in 1969 to build car parks on the facility in Lovers Walk, removing trees, shrubs Common adjoining the Cowherds inn. This and bushes, and widening the tarmacadam was opposed by the amenity societies, namely surface of the path have met with considerable the Southampton Civic Trust (now the City of opposition. Southampton Society), the Friends of Old Commercial pressures on the Common are Southampton, and the Southampton becoming increasingly strong. At the principal Commons and Parks Protection Society. Feel­ entry points to the Common — the north-west ings ran high, public meetings were packed, and south-east corners and Holly Lodge — but the Council persisted. The case went to commercial advertising poster boards have the High Court, where the judge found for the been erected. They advertise nothing societies and against the Council on three whatsoever to do with the Common, arc principal grounds: obtrusive and are often in dilapidated condi­ (1) A car park, especially when used as such, 266 HAMPSHIRE FIELD CLUB AND ARCHAEOLOGICAL SOCIETY would impede air and exercise and was apply the term 'reasonable' to any given set of therefore illegal. facts. (2) The proposed car parks would be a road, In 1981, barely ten years later, in the only access to a building, and therefore fell consideration of the continuing legal problems within the prohibition of roads under the 1931 and growing commercial and other pressures, act. the Council proposed far-reaching legal (3) The statutory powers vested in the Council changes: were subject to the test: Is the proposed (1) Extended powers of closure: exercise of the power properly and reasonably (i) Closure days to be extended necessary to enable the public to enjoy the from 60 to 90; land as an open space? (ii) Consecutive days to be As the purpose of the car parks was to serve extended from 21 to 30; the Cowherds, the Zoo, and the Dell football (ii) The maximum area to be closed ground, none part of the Common, and the to be extended from 50 to 210 City generally, the judge found that the acres. proposal was not reasonably necessary to (2) A new roadway to the Zoo. enable the public to enjoy the open space or (3) The provision of leisure facilities, such as for the Common to be used as public walks or bandstands, tea-rooms and a children's leisure grounds. Furthermore, the proposal railway. was in breach of the byelaws and the Council (4) Power physically to remove illegally parked had no power to allow large sections of the vehicles. public to ignore the byclaws (Attorney General (5) Legal duty of disclosure by the registered v City of Southampton, 1970; Samuels, 1970). keeper of a vehicle (the owner) on the Because of the court case and this time in Common of the identity of the driver. consultation with the three local amenity soci­ There were strong and widespread eties, the Council promoted the Southampton objections to the first three proposals, espe­ Corporation Act 1971. This authorised the cially regarding extended closure. Virtually all construction of fences, mounds or ditches to the open space would be closed virtually all prevent vehicles driving on to the Common. summer. There would be more serious soil The clause of the 1931 act permitting parking impacting and damage to the ecology, which in specific roads was revoked, but parking of would not have time to recover. There would vehicles was permitted for the use of people be more commercial activities, particularly as resorting to the Common alongside Cemetery the Show usually loses money. It was claimed Road, such parking not to extend more than 72 that existing use was already at saturation feet from the centre of the road. The act also level and that the public want the Common authorised closure for a maximum of 21 left as far as possible in its natural state. It was consecutive days, a maximum of 60 days, and suggested that automatic barriers on existing a maximum of 50 acres in the course of a year roads would suffice for the Zoo and that (Southampton Corporation (Southampton individual proposals for leisure facilities, such Common) Act 1971). Difficulty has arisen over as bandstands, should be considered on their the interpretation of these powers so far as merits rather than made subject to blanket 'before' and 'after' is concerned, that is authorisation. There proved to be no public erection and dismantling. The Council has demand for the proposals, which were entirely permitted extensive time before and after, officer inspired, and they were dropped for the effectively preventing or impeding public use moment (SPPS papers; SCC counsel's opinion, and enjoyment of the land affected. The amen­ 1981). ity societies consider this to be excessive or The proposals for more effective power to improper. All agree that a reasonable time is to control illegal parking were sound and be implied before and after, but it is difficult to unobjectionable. If any vehicle is left without SAMUELS: SOUTHAMPTON COMMON - THE LEGAL REGIME 267 authority on the Common, the Council may to and inconsistent with the proper use of the remove it for safe custody and may recover Common, and not reasonably necessary to from the person responsible the expenses rea­ enable the public to enjoy the land as a public sonably incurred. Similarly the owner of any open space. See the decision of the judges in unlawfully parked vehicle commits an offence the court cases. if he fails to disclose the identity of the driver on being required to do so (Hampshire Act 1983 ss58-9). REFORM In 1984 the Council agreed to allow Mission Solent to hold an evangelical crusade on the All the relevant law is now contained in the Common for eight days and for the Hampshire Act 1983, but few know what the participants, expected to be many thousands, law is or where it is to be found. The preserved to be accommodated in a big tent. While law is old-fashioned in language, style and recognizing Mission Solent to be a respectable content, often unsuitable for contemporary and worthwhile body, the three amenity soci­ problems, silent or unclear. The law and eties were concerned by the noise and the byelaws are inaccessible and difficult to damage to the grass caused by numerous understand. Out of ignorance, indifference or people, vehicles and attendant activities. They wilfulness, many people break the letter and also feared that a precedent would be set for spirit of the law. The Council, supposedly a more controversial and less generally trustee, shows a tragically indifferent and even acceptable events on the Common, such as hostile attitude to its statutory obligations. It political rallies and boy scouts jamborees. breaks the law, permits others to do so, and Hoglands Park has been used for such events does not prosecute offenders. and there are other suitable sites in city. An It is desirable that a new modern statute injunction was sought and was heard in the should set out the relevant law in modern form chancery division of the royal courts of justice and thus comprehensively and positively on 3 May 1984. The case turned on section establish an effective legal regime for the 3(1) of the 1971 act, which provides that the Common. But useful though a restatement of Council for such time or times as they think fit existing law would be, the basic need is for a may close to the public or restrict public fundamental and wide-ranging review of all access to any part of the Common for the the problems, involving the whole community. purpose of 'fairs, shows, circuses, or other Guidelines for the management and future functions of like nature'. Mr Justice Harman development of the Common are needed. found that this clause authorised frivolous There should be a strategy, a policy, and events rather than a serious and purposeful effective standing consultative machinery crusade, that it permitted 'something designed involving as many interests as possible. The to entertain and not to improve or convert the more successfully the end result accommo­ heathen population of Southampton to the dates the many conflicting demands and the words of Our Lord'. The injunction was more consent it secures, the more likely it is to granted (Attorney-General v Southampton be observed. The establishment of a warden Corporation, 1984) and the mission took place with full powers and staff for the Common elsewhere in Southampton. would enable a start to be made in upholding and enforcing the law. In summer 1985 the Council erected a struc­ ture on the Common just south-west of the junction of the Avenue and Burgess Road, A cknowledgements intending to display a sign proclaiming the city to be a nuclear free zone. This is illegal I am most grateful for assistance to Dr L Velecky, because it is an unauthorised structure, Secretary of the Southampton Commons and Parks contrary to the statutes and byelaws, unrelated Protection Society, and to Mr John Griffin, solicitor, 268 HAMPSHIRE FIELD CLUB AND ARCHAEOLOGICAL SOCIETY of Messrs Abels, who acted in the court cases. The behalf of the Field Club to present the text as a work author acknowledges some editorial intervention on of contemporary history.

REFERENCES

Acts of Parliament erty and Compensation Reports, 281 5 & 6 Wil IV c 76 Municipal Corporations Act 1835. Foster, J. 6 & 7 Wil IV c 96 Southampton Water Act 1836. Attorney-General v Poole Corporation (1936) 3 All Eng­ 3 & 4 Victoria c 8 Southampton Cemetery Act 1840. land Law Reports 852, 861; (1938) 6 & 7 Victoria c 67 Southampton Cemetery Act, Chancery 23, 34, Court of Appeal. 1843. Attorney-General ex rel. Davis, Samuels and Carey v 7 & 8 Victoria c 75 Southampton Improvement Act Southampton Corporation (1984). 1844. Attorney-General v Sunderland Corporation (1876) 2 7 & 8 Victoria c 54 Southampton Marsh Act 1844, Chancery Division 634. ss 115-19. Burnley v England (1979) 77 Local Government 13 & 14 Vic c 60 Waterworks Act 1850. Reports 227. 28 & 19 Vic c 162 Southampton Marsh and Markets SCC Southampton City Council, byelaws relating Act 1865 s 72. to pleasure grounds, 1967, amended 1977; 38 & 39 Vic c 55 Public Health Act 1875 s 164. Minutes; counsel's opinion (a) on 39 & 40 Vic c 56 Commons Act 1876. proposed changes in legal regime of the 47 & 48 Vic c 59 Southampton Corporation Common 1981 (b) on status of part of (Cemetery) Act 1884. Common adjoining 5 Highfield Rd, 1983. 53 & 54 Vic c 59 Public Health Amendment Act SPPS Southampton Commons and Parks Protection 1890 ss 44-45. Society, counsel's opinion on (a) legality of 62 & 63 Vic c 30 Commons Act 1899 s 10. advertising poster boards, 1976 (b) lawful 10 Edw VII & 1 Geo V c 99 Southampton use of old decontamination centre, 1980 Corporation Act 1910 s 87. Geo V c Law of Property (c) on status of that part of Common Act 1925, ss 193-4. adjoining 5 Highfield Rd, 1982; papers. 21 & 22 Geo V c 99 Southampton Corporation Act 1931. Southampton Corporation Act 1960 ss 87-88. Public Health Act 1961 s 53(3). Secondary sources Commons Registration Act, 1965. Southampton Corporation (Southampton Samuels, A 1970 Car parking on the Common, Common) Act 1971. Solicitors Journal 114 711. Local Government Act 1972 s 145. 1984 Mayflower Park, Southampton: Public Local Government, Planning and Land Act 1980. Access to the Southampton Waterfront, Hampshire Act 1983, ss 56-59 & schedule 2. Proc 40 138-40. Thomson, S D 1979 Southampton Common, City of Southampton Society, Southampton. Abbreviations and other primary sources 'Townsman' 1980 The Common and Its History, Attorney-General v City of Southampton (1970) 21 Prop­ Southern Evening Echo 9 February 1980.

Author: Alec Samuels JP, Barrister, BA (Cantab).

(C) Hampshire Field Club and Archaeological Society.