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Southampton Common: the Legal Regime

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Southampton Common: the Legal Regime 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.
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