An Analysis of the Lands that make up
Queen’s Park, Bournemouth
The Park is made up of many parts, acquired under and governed by various different legislative powers. The boundaries of each of these parts are shown on the maps here, and are distinguished as follows:
All of this land is governed by the “Five Parks” legislation (Bournemouth Borough Council Act 1985).
This area of land is referred to in Council Minutes in November 1907, when approval was given for an earlier request “that the border of Queen’s Park to the north of the north drive might be planted with pines and rhododendrons”. It is also shown clearly on contemporary maps.
In 1924, Mr. PW.T. “Wilf” Hayward, a local builder, was elected a councillor, and so became a Trustee of the Park. In his time as a councillor he served on the Corporation’s Roads Committee, and he became an alderman in 1935, and Mayor in 1939. He was also a prominent freemason.
In January 1925, the Corporation’s Roads Committee considered the laying out of new roads in the area, prompted by a letter from Councillor Hayward’s solicitor. The following month Hayward bought land adjoining the north side of the Park from the Earl of Malmesbury, subject to certain covenants. This land was part of the Hadden Hill Estate, which had been laid out as a pine plantation some time after the 1805 Inclosure.
Hayward immediately set about building houses on this land and selling off building plots, and in doing so appears to have appropriated for himself a strip of land from the Park, which now forms part of the front gardens of these properties. The Corporation’s Parks Committee minutes make no reference to the sale of this strip of land, yet at the suggestion of Hayward’s solicitors in October 1925 the Corporation’s Roads Committee agreed to allow the building line to be brought down to 50 ft from Queen’s Park Avenue, subject to the agreement of the Earl who had stipulated 60 ft in the sale covenant. Anticipating the Earl’s approval, Councillor Hayward then submitted plans to the Corporation in March 1926 for the laying of a sewer by his building firm along Queen’s Park Avenue, to which the Corporation agreed. The Corporation also donated £150 towards the cost. The Earl’s approval for the variation in the covenant was given a week later.
It is not clear whether the appropriation of the strip of Park land was made by the Earl prior to the sale of the Hadden Hill Estate, or that he had any knowledge of its appropriation when he agreed to the change in the building line. Within two years, houses were being completed and sold including sections of the strip of Park land at the bottom of their front gardens. What does seem clear is that one of the Park’s Trustees profited personally from the encroachment of buildings onto the Park that he was supposed to prevent.
‘Wilf’ Hayward died in 1941, and was succeeded in the family building business by his son, who also continued with the Park encroachments. Council Minutes record the following:
28/2/1956: Sale of Corporation interest in land. The Town Clerk submitted an offer received for the Corporation interest in a certain plot of land fronting Queen’s Park Avenue, and was instructed as to the reply to be made.
27/3/1956: Land Adjoining Queen’s Park Avenue. The Town Clerk reported that as suggested by this Committee, Mr. Hayward had increased to £250 his offer for the acquisition of the Corporation’s interest in this land. Recommended — that the offer be accepted, and the District Valuer be asked to approve the proposed settlement.
The piece of land in question was the final remaining piece of the old common on the north side of Queen’s Park Avenue, smaller portions between here and Broad Avenue having previously been appropriated without comment. Not only was its sale illegal, but again the Trustees who were supposed to stop the encroachment were actively encouraging it. The Trustees told Mr. Hayward what price to offer, and it also seems that they presumed to tell the District Valuer what value to put on the land. Houses had been built on this land and sold by 1959.[1]
The Corporation’s only power to sell, dispose of or exchange small portions of the Park was given by the Bournemouth Corporation Act 1904, but only for the purpose of improving the boundaries of the park. The sale detailed above does not appear to satisfy this criterion, and nor do any of the other disposals.
The minutes also record at different times the dedication for highway purposes of various plots fronting properties on Queen’s Park Avenue. Many of these plots are the grass verges on the north side of the Avenue which are in fact part of the Park, and which were illegally “sold” to Hayward. This presumably renders their dedication for highway purposes invalid.
In 1906, the Corporation approved the erection of notices at the end of all the Park’s drives prohibiting their use by traction engines, trade carts and heavy traffic.
In 1930 a Mr. Pemberton wrote to the Corporation to complain about “the annoyance caused by motor traffic along Queen’s Park Drive”. Although by that time no road of that name existed, it is clear that he was referring to the roads around the Park, and perhaps in particular to the section that runs on the Park land. Mt Frank Pemberton lived in Queen’s Park Avenue, and despite not knowing his road names presumably knew something about the law because he was a solicitor. His complaint was acknowledged and instructions were given to the Town Clerk.
On 17th December 1934 the Corporation’s Parks Committee Minutes record the receipt of a petition from residents in Queen’s Park Avenue, protesting against the use of the Avenue by heavy vehicles. the Council accepted on New Year’s bay 1935 the Committee’s recommendation “that the Town Clerk be instructed to communicate with the police on the matter and also with the owners of public service and other heavy vehicles, informing them that such vehicles are not permitted to use the portion of Queen’s Park Avenue between Queen’s Park West Drive and Holdenhurst Road”. Not only does this confirm that the section of road built on Park land was still acknowledged as such, but it acknowledges that the plot of land bought from Mt Cooper Dean at the eastern end of the Avenue is subject to restrictive covenants concerning the passage of vehicles over the land.
The 1952 Bournemouth Development Plan Map seems to show the entire length of Queen’s Park Avenue being designated as a strategic through-route, but there is no explanation of the process by which it was hoped to achieve this.
In October 2002 Council officers claimed in correspondence that this section of road is a public highway. Their initial claim that it was adopted as such in 1908 was later changed to a claim that it was adopted in 1954, but the only evidence they have offered to substantiate this claim turns out to refer to different land. It has been entered in the official Highways Ledger, but this can be no proof that is in fact a highway.
In determining how to deal with the issue of access to properties adjoining the Park, it may be helpful to refer to Paterson v. Provost of St. Andrews [1881] 6 App Cas 833 HL, a similar case in which the local authority were not ordered to close a road completely , but were ordered to restrict and regulate the traffic. All three judges agreed that the traffic flow generated by residents did not constitute a substantial interference with the rights of the public to use the land for recreation and enjoyment. Furthermore, and of particular relevance here, where at the time of the road’s construction Queen’s Park was on the very edge of a relatively small Borough, one of the judges stated that:
“Uses which would be legitimate and proper in a thinly populated burgh may become very illegitimate and very improper, and may constitute invasions of the burgesses’ rights when practised where there is a large population.”
In discussing the question of access to property, one of the other judges stated that:
“Such things may be done in such a way as not to interfere with [for recreation and enjoyment], and though the motive may be to give an advantage to a particular person who owns a house, … yet so long as it does not interfere with the rights which the inhabitants possess to have those lands preserved for the public recreation and enjoyment... I do not see that the Appellants have any right to complain or to claim any interdict’.
In the 1952 Bournemouth Development Plan, a narrow strip of land along the south-east edge of the park was allocated for the widening of Holdenhurst Road. There doesn’t appear to be any indication of how this land would be acquired. Holdenhurst Road, renamed as Littledown Drive, still exists immediately adjacent to Wessex Way.
According to Council Minutes, a total of about 13 acres of land would have to be taken from the Park in order to build Wessex Way, and accordingly £79,200 was paid by the Corporation’s Highways Committee to the Parks Committee.
In November 1965 the Bournemouth Evening Echo ran the headline, “You can take it to court — Minister. COUNCIL CAN USE GOLF COURSE”. The article goes on to explain that, according to the local M.P., the Government Minister of Housing and Local Government was unable to stop Bournemouth Corporation taking part of the Park for the Bournemouth Ringwood spur road.
It was claimed that section 220 of the Bournemouth Corporation Act 1930 enabled the Council to use theft own land “as they thought fit”, a claim which was disputed by the Bournemouth East Residents’ Association. Councillor Cyril Dyer, who was chairman of the Association, expressed the view that the Minister was being unfair in suggesting that they go to the Courts, “because members of the Association could not under any circumstances bear the financial burden of doing so.”
Had they taken it to Court, the Association would no doubt have quoted clause (2) of section 220 of the 1930 Act, which orders that nothing in the section “shall release the Corporation […] from any […] terms or conditions […] contained in any […] instrument by which lands were […] conveyed […] to […] the Corporation […] but all such […] restrictions reservations terms and conditions shall remain and be of as full force and effect and may be recovered exercised enjoyed and enforced in like manner and to the same extent as if this Act had not been passed.”
In other words, if the Act of Parliament by which the Corporation acquired the land forbade the appropriation of any part of the land, then section 220 of the 1930 Act would not be applicable. Such appropriation was indeed expressly forbidden by the Bournemouth Borough Council Act 1900 (the relevant section of which was not repealed until the introduction of the “Five Parks” legislation in 1985), under which the land first came into the Corporation’s ownership.
Section 23 of the Town & Country Planning Act 1959 gave no powers of appropriation to the Corporation either, because such powers are not applicable to any land that once formed part of a common.
It might be that a Public Enquiry would have cleared the way for the appropriation of the Park Land, but in failing to see that the correct procedures were followed, the Trustees again failed in their duty to prevent encroachments on the Park.
The 1805 allotment for the building of Holdenhurst Road ran at a width of 40ft along the south-east boundary of Common 60. When Wessex Way was built, this section of Holdenhurst Road was renamed Littledown Drive. It is not clear whether there is any Park land remaining between Littledown Drive and the land bought for the construction of Wessex Way, but if there is, it is not recognised as such and cannot be used for its authorised purpose, the "recreation and enjoyment of the public".
Although the provision of a car park of this extended size is permissible under “Five Parks” legislation, funding for the extension was accepted from the nearby Health Club, on the condition that the whole of the car park would remain available free of charge for users of the Park. The clear but unstated reason for the extension of the car park is to provide car parking for the Health Club. Such use of the land is not permitted by the legislation, and the decision to allow it on these terms marks another encroachment and another lapse in the Trustees’ judgment.
The Council’s map of the “Five Parks” land here shows the border following the edge of the car park rather than extending into it.
Land was given or sold by James Cooper-Dean and by the Earl of Malmesbury for the construction of Queen’s Park South Drive and Queen’s Park West Drive. This land was to be dedicated for highway purposes, but it appears that where the line of the road strays over Park land, this too has been presumed to be dedicated for highway purposes, against the terms of the Trust. Judging by the entries in the Council minutes detailed in b) above, perhaps the true status of this land was still recognised by the Corporation as late as 1930, but had been forgotten by December 1934. Perhaps they had relied on being reminded by the Earl’s mother who lived locally but who had died in April that year.
Note the small island of park land to the south of Queen's Park South Drive, which is totally unusable for its proper purpose or recreation and enjoyment of the public. In the terms of the 1985 Act, it has been "alienated".
Council Minutes of 1906 record the recommendation that the Rifle Range be constructed on “the easterly portion of the old day pit and that part of the former “Poors Common” which lies outside the trotting track”. The larger part of the Rifle Range is on this land. However, the Council’s map of the “Five Parks” land excludes this area, because what in reality is a straight border from Queen’s Park Avenue in the north to Queen’s Park South Drive in the south, for some unexplained reason, on the Council’s map has been changed to follow the line of the old trotting track.
The acquiring legislation required that this land was to be used “for the recreation and enjoyment of the public”. Following a public enquiry in September 1969, the Minister of Housing and Local Government reported that “Queen’s Park is a public open space and was bought as such, but its enjoyment is greatly inhibited by the use of the greater part as a golf course”. Golf is now (in 2003) played on the Park seven days a week, and during winter even the Sunday early (12 noon) last tee-off means that the Park is never free from golf during daylight hours. Byelaws forbid the playing of any games on this land except golf. The land is being used to a disproportionate degree for the recreation and enjoyment of only a small section of the public: most of the recreational pursuits of the rest of the public are forbidden, and as the Minister stated, their enjoyment is greatly inhibited.
When the Minister made his judgment, he was unaware that the provision of sports facilities is forbidden by covenants on the area of land now known as Queen’s Park West (see 3d) below) — in fact his decision was based on the desirability of preserving the football pitch there. Enjoyment of the Park is consequently even more inhibited than he imagined by the use of the whole of the “Five Parks” land as a golf course. In any case, Queen’s Park West is an additional amenity, not a substitute to make up for shortcomings in the recreation and enjoyment of the “Five Parks” charity. The “Five Parks” land should in itself be managed to provide for the recreational needs of the public, and not for the exclusive and particular needs of any sectional interest group.
The powers granted to the Council by the “Five Parks” legislation to provide facilities for sports and recreations stipulate that they must be for the benefit of the public at large. “For the benefit of” is not synonymous with “available for”. The Minister’s judgment seems clearly to deprecate the current 7-day golf provision in the Park.
Furthermore, Section 28 of the Bournemouth Borough Council Act 1985, the section dealing with the “Five Parks”, clearly states that the Park is held by the Council under the meaning of the Public Health Acts. According to “Leisure Services Law, 2nd edition (page 154), referring to the Public Health Act 1961 section 52(3):
“Sports pitches involve some exclusion of the public... The exclusion is, of course, only for the period of play… The local authority must ensure that exclusive use as above does not extend to more than one third of any park or pleasure ground.”
It goes on to say that the local authority must satisfy themselves that other recreational activities are not unfairly restricted within the Park, but that the general powers granted by the 1961 Act may be varied by local Acts. The 1985 Act does not seem to vary the conditions imposed by the 1961 Act outlined above.
The Council's view is that the non-golfing public are not excluded from using the golf course because golfers are supposed to give priority to other park users, but in practice those other users are excluded out of fear of injury and/or consideration for golfers to whom the Council has sold tickets. Byelaw 33 (forbidding all games on the golf course except golf) is another form of exclusion imposed directly by the Council.
This land has been almost entirely enclosed with fencing, in order (it is claimed) to protect the public from the dangers of golfing. The 1985 Act is a consolidating Act, giving additional powers to the Council, so must be read in conjunction with the Acts that it repealed. One of those Acts, the Bournemouth Corporation Act 1900, gave the Corporation the power to buy this land on the condition that it be kept “forever open, unenclosed”. There is a big difference between the erection of small sections of fence to protect the public (authorised by the 1985 Act), and the enclosure of the Park (not authorised).
All of this land is governed by the Indenture dated 28th November 1906 between James Edward Cooper Dean, the Trustees of his settled land, and the mayor, Aldermen and Burgesses of the County Borough of Bournemouth.
The Indenture states quite categorically that unlike the strip of land on which the South Drive was built (which was to be dedicated as a public highway), the strip on which the eastern end of the North Drive was built was to be “added to and forever remain part of the Public Parks and Pleasure Grounds” which it adjoined.
As with the land discussed at 1b) above, unauthorised traffic has been allowed to use this part of the Park for most of the period of its existence, and the 1952 Bournemouth Development Plan shows its intended designation as a strategic through route.
As with the land mentioned at 1c) above, this land appears to have been sold without following the correct procedures.
This land is governed by the Indenture dated 27 April 1908 between the Earl of Malmesbury, the Trustees of his settled land, and the mayor, Aldermen and Burgesses of the County Borough of Bournemouth.
The Indenture by which the Corporation acquired the land is dated 1908, but was drawn up in line with an Agreement dated 22 June 1904, where it was first stipulated that the Corporation would enter into a covenant to keep the land forever as Public Walks and Pleasure Grounds.
Section 89 of the Bournemouth Improvement Act 1892 gave the Corporation powers to “provide apparatus for games and recreation for the use of the public frequenting the public parks, gardens, and recreation grounds”, and section 92 of the same Act gave them the power to “from time to time set apart portions of any park or place of public resort or recreation for the time being belonging to or held by them for cricket, football, archery, and other games”. However, the Minutes of Council Meetings over the following years confirm that it was not the Earl’s intention in selling the land to the Corporation (at a token £10 per acre) for it to be used for games or sports.
At a meeting in February 1909 it was drawn to the Council’s attention that the 5 year limit imposed by the Earl for the completion of the laying out of the pleasure ground would expire in June that year. Because the old clay pits on the site were being used for landfill, and not much (if any) progress had been made, the Town Clerk was instructed to write to the Earl to ask for a 2 year extension.
At the same meeting, less than a year after acquiring the land, the Council considered a suggestion that part of it should be set apart for golf tuition, and the following month instructed the Borough Surveyor to prepare a scheme for laying out the land, referring to the covenant and to the suggestion of a golf tuition area.
What was said to whom is not recorded, but a month later these instructions were modified such that the scheme was to be prepared with reference only to the covenant, and the suggestion of a golf tuition area was to be disregarded. The Earl’s agent subsequently wrote to ask if he could assure his Lordship that there was no intention to vary the originally intended use of the land. With the Council’s approval, the Town Clerk replied that there was no desire to vary the originally intended use of the land, the sole object being to obtain an extension of time.
Plans for the laying out of the Park extension were finally approved in September 1909. But discussions still continued.
It was agreed in July 1912 that the Surveyor be instructed to prepare more plans, this time for a football and cricket pavilion to be erected on or neat the site of the cottage near the Rifle Range. For reasons not explained in the Council Minutes, these plans were never adopted. Similarly, plans mooted in 1912 for a croquet lawn and in 1919 for tennis courts were never realised. It is likely that all these plans failed because of the 1908 Covenant.
It seems abundantly clear that the Earl’s original intention in making the covenant was to create a quiet and peaceful area of the Park, free of games, to compensate for the fact that golfing prevented finding such areas in the rest of the Park. He had a vested interest in doing so, because his elderly mother lived in Queen’s Park Avenue — she clearly would not have benefited from the provision of sports facilities, but she did take an interest in other local amenities, as shown by a letter from her complaining about the use of the Park’s drives which was read to the Council in 1912.
It seems significant that within two weeks of her death on 3rd April 1934, a petition signed by upwards of 150 residents in the neighbourhood was received by the Council, asking that the piece of ground now occupied by the car park might be provided with pampas grass, bamboos and such like. As these people were later referred to as “memorialists”, perhaps they were seeking a memorial for the Countess of a type that they knew she would approve. The Council subsequently refused the request, but asked for estimates of the cost of improving the surface of the ground for use as a children’s playground — which never materialised.
Later that year, the Council considered suggestions that part of the land be laid out as a playing field. A letter from local residents and a petition from the National Citizens’ Union were received protesting at this proposal, and the Council instructed the Acting Parks Superintendent to prepare an estimate of cost for laying out the land as - a pleasure garden! Hope that the Earl’s original intention might finally be realised after 31 years were premature, for in February 1935 it was agreed that the land would merely be cleaned, a number of shrubs and trees planted, and then left as far as practicable in its natural state.
Further evidence of the Earl’s intention can be inferred from the fact that by the same 1904 Agreement he sold to the Corporation the Recreation Ground at Winton, which by 1908 had already been laid out. Mention of this land in Council Minutes prior to 1904 refer to it as “Pleasure Grounds”, but the Minutes of a meeting on 14th January 1904, under the heading “Proposed Recreation Ground for Winton”, record the receipt of a letter (dated 10th January 1904) to the Mayor from the Earl, “as to the proposed Pleasure Ground at Winton”, and the recommendation “that the Town Clerk carry the matter through in the manner suggested by Lord Malmesbury”[3]. Clearly, the Earl had sought to make distinct differences in the character of the lands at Winton and at Queen’s Park.
A similar but unconnected conveyance was made in Poole in 1905, where land was covenanted to be preserved as “a pleasure ground or recreation ground for the use of the public”[4]. This reinforces the view that at the time the Earl made his agreement with Bournemouth Corporation, a pleasure ground and a recreation ground were thought of as spaces of distinctly different character.
Bournemouth Corporation lost an appeal in 1910 in the case of a covenant made in 1904 which it sought to override. The Judge commented that “no landowner would be so unwise as to sell his land if, notwithstanding covenants of this kind, it could be used for any purpose the corporation chose to put it to, however undesirable”[5].
The Fifth Earl of Malmesbury died in 1950. Attempts made by the Council during his lifetime to use the land variously for golf, tennis courts, croquet, football and cricket failed. The proper place for these much wanted amenities is, and always was, on the original Park land.
The Council’s Minutes show that it had not been their original intention to use the whole of the original Park land for golf:
Ø 12th December 1900 — the Parks Committee visited Common No. 60 “and deferred consideration as to the laying out of the same”.
Ø 8th May 1902—it was agreed to set aside 2 acres as a cricket ground.
Ø 12th February 1903 — the Borough Surveyor was instructed to make plans for the laying out of golf links.
Ø 16th September 1903 — The golf course’s architect, J. H.Taylor, having reported that there was ample room for an 18-hole course and some to spare, it was agreed to allow 30 acres of the Park for a General Recreation Ground.
Ø 12th November 1903 — the Town Clerk was instructed to reply to a letter, stating that it was the intention of the Council to set apart a suitable part of Queen’s Park as a playground for children.
This was the lie of the land when in February 1904 the Earl indicated his willingness to part with 10 acres to be added to the Park.
But then:
Ø 4th April 1904 — the allowance for a General Recreation Ground within the Park was reduced by 22¼ acres, leaving just 8¾ acres — to be extended “if at all possible”.
It wasn’t possible. It wasn’t even possible to make the 8¾ acre allowance. In fact none of these decisions were ever implemented, and in spite of objections from local residents’ associations, in October 1905 a golf course was opened which covered the whole of the original Park. Even the remaining trees and heather were seen as nothing more than “excellent hazards” by the architect of the course, J. H. Taylor. He thought that the “deep ravines that intersect the ground”, and which sometimes make it impossible for golfers to see the walkers whose lives they imperil, “make it of a very sporting nature”[6].
Additions made subsequently in the north-east of the Park were also subsumed by the golf course, and so, ultimately, the golf course was to occupy 95% of the Park. Since then, much of the remaining 5% has either been sold or given up for the car park, as discussed in a) and c) below.
This was sold to its tenant in 1992 under “Right to Buy” legislation. While Local Authorities are authorised to provide houses for park keepers, it must be examined whether the covenant permitted the terms of tenancy which led to the tenant’s claim of right to buy the property, and indeed whether the claim was valid under those terms.
A number of memoranda attached to the master copies of council minutes shed some fight on the nature of the lease in 1959. See section IV of this report.
It would appear that the sale might only have been be legal;
i. if the house was let legitimately on a secure tenancy (questionable because the 1907 Act permits the provision of a dwelling only for a caretaker, whose tenure presumably is only as secure as his job)
and
ii. if the trust created by the 1908 covenant arises solely by virtue of the land being held in trust for the enjoyment of the public in accordance with section 164 of the Public Health Act 1875.
Use as a Rifle Range can hardly be described as consistent with the terms of the Covenant.
The 1970 Minister’s Report referred to in 1h) above also stated that the proposed Golf Club development, because it was to be built on the non-golfing land west of the Pavilion, would result in a serious amenity loss to the neighbourhood. This land was occupied by a junior football pitch, which was subsequently torn up to make way for the car park.
The 1985 Act precludes the provision of a car park if it is at variance with any covenant on the land, as indeed it is in this instance.
About half of this land is now occupied by a football kick-about area. Although, in the absence of such facilities in the main Park, this is a valuable local amenity, it may be construed as inconsistent with the intent of the Covenant.
The land described in 4 and 5 below is the subject of some confusion. In addition to the history given below, the two parcels of land seem to have been lumped together to be designated for compulsory purchase in the 1952 Development plan. Examination of the Council minutes at Dorset Record Office shows that it was to be developed as public open space (2.33 acres) and for road improvement (0.55 acres). Council minutes later record that they did not plan to oppose a Notice by which part (or all?) of the segment designated as public open space would be turned to Highways use.
Furthermore, close inspection of the 1805 Inclosure Award Map shows a narrow strip of Common No. 60 separating these two plots. It seems at some stage to have been subsumed into either or both of the plots between which it ran. If this area of the Park is ever under threat of sale and/or development, this might become a very important issue.
This land was presumably acquired under the statutory powers of the Open Spaces Act 1906. There may be covenants in force.
As with the land mentioned at 1c) above, this land appears to have been sold without following the correct procedures.
This land in the north east corner of the Park was acquired in connection with reconstruction of the golf course, presumably under the Open Spaces Act 19O6[7]. I have not determined whether any covenants are in force.
As with the land mentioned at 1c) above, this land appears to have been sold without following the correct procedures.
This land appears to be fulfilling its intended purpose.
An unrepresentatively small plot of land to the east of the junction of Queen’s Park Avenue and Mount Pleasant Drive was incorporated with the Park as exchange land[8], in connection with the building of Wessex Way. As exchange land it should automatically be included as part of the “Five Parks” land.
These are all, presumably, permitted by statute, but nevertheless contribute to the total of built provision within the Park.
THIS INDENTURE made the 28th day of November 1906 BETWEEN James Edward Cooper Dean of Littledowne House in the Parish of Holdenhurst in the County of Southampton Esquire (hereinafter called the Grantor) of the first part James Edward Cooper of Littledown House aforesaid Esquire and Henry Walter King Rawlins of Broadstone in the County of Dorset Esquire of the second part and The mayor Aldermen and Burgesses of the County Borough of Bournemouth in the same county acting by the Council as the Urban Authority (hereinafter called the corporation) of the third part.
WHEREAS under and by virtue of the will of William Clapcott Dean ( who died on the third day of December One thousand eight hundred and eighty seven) dated the twelfth day of November One thousand eight hundred and eighty seven with two codicils thereto dated respectively the nineteenth day of November 1887 and 29th day of November 1887 duly proved at the Principal Registry of the Probate Division of the high Court of Justice on the 9th day of January 1888 by Robert Stead Jones Stevens and Henry Oakley Chislett the executors and trustees in the same will named (inter alia) the piece of land hereinafter conveyed coloured green on the plan annexed hereto was devised to the said Trustees to the use of the Grantor and his assigns during his life without impeachment of waste with remainder to be the use of the first and every other son of the said Grantor successively in remainder one after another according to their respective seniorities in tail male with divers remainders over and with an ultimate remainder of the said Grantor in fee simple subject nevertheless to the life annuities therein mentioned of which the following are now subsisting namely to Major Charles Clapcott the sum of four hundred pounds to Mary Best the sum of fifty pounds to William Vivian he sum of twenty six pounds.
AND whereas by an indenture dated the 11th June 1898 and made between the Grantor of the first part Joseph Cooper Dean the only son of the said Grantor (who attained the age of 21 years on the 21st day of March 1887) of the second part and James Edward Cooper of the third part the said Grantor and the said Joseph Cooper Dean with the consent of the said Grantor as protector of the Settlement did respectively grant unto the said James Edward cooper the hereditaments and premises devised by the said Will subject to the said annuities and to the uses estates and charges created or limited by the said Will but discharged from all estates in tail male or in tail of the said Joseph Cooper Dean to such uses and upon such trusts and subject to such powers and provisions as the said Grantor and Joseph Cooper Dean should thereafter by and deed or deeds revocable or irrevocable jointly appoint and the reciting Indenture was duly enrolled in the Central Office of the Supreme Courts of Judicature on the 4th day of July 1898.
And whereas by virtue of an indenture of Settlement dated the 13th day of June 1898 and made between the aid Grantor of the first part Joseph Cooper Dean of the second part and James Edward Cooper and Henry Walter King Rawlins of the third part the Grantor is tenant for life in possession of the lands and hereditaments devised by the said Will (hereinafter referred to as the settled land) of which the lands hereinafter conveyed form part and has certain powers conferred upon him by the said Settlement in addition to the powers conferred upon tenants for life by the Settled Land Acts for the purposes hereinafter mentioned.
AND whereas the Corporation pursuant to an Agreement with the Grantor have at their own expense constructed and completed the roads and works the sites whereof are shown on the plan hereto annexed and thereon colour pink and green.
AND whereas the said Grantor has agreed to convey the sites of the same roads and works to the Corporation in the manner hereinafter set forth and also to convey to the Corporation the piece of land hereinafter particularly described.
NOW THIS INDENTURE WITNESSETH that in pursuance of the said Agreement and in consideration of the premises and by virtue of the powers conferred upon him as tenant and for life by the said Indenture of Settlement and by the Settled Land Acts 1882 to 1890 and of all other powers enabling him in that behalf and for the adaptation improvement and development of the land and hereditaments comprised in the said Indenture os Settlement as a Building Estate and for the benefit of the residents on the Settled Land and those who may hereafter become lessees of the Settled Land not yet leased but intended shortly so to be and for the benefit of the inhabitants of Bournemouth generally the said Grantor doth hereby as Settler and beneficial Owner convey to the Corporation
ALL THOSE several strips of land colour pink and green on the plan annexed hereto as the same are situate abutting on the Eastwood Estate and land known as Van Diemans land and Thistlebarrow Bournemouth aforsaid (except and subject as hereinafter mentioned).
TO HOLD the same unto and to the use of the Corporation in fee simple subject to the annuities above mentioned to the end and intent that the same strips of land my respectively for ever hereafter vest in the Corporation and as to the strips marked "C to D" on the said plan (Eastwood Estate) become a part of the Public Highway and be used and enjoyed by the Public accordingly and as to the other strips be added to and forever remain part of the Public Parks and Pleasure grounds to which the same adjoin and be maintained by the Corporation and enjoyed by the Public accordingly
EXCEPTING and always reserving unto the Grantor and his successors in Title the Owner or Owners for the time being of the Dean Estates at Holdenhurst and Bournemouth aforesaid and their assigns and his and their family as servants and all persons authorised by him or them (but subject at all times to the statutes byelaws and regulations relating to the Public Park known as Kings Park and the drives therein) the full and free right and liberty to pass and repass with or without horses and other animals and carts and carriages from time to time and at all times hereafter at his Will and pleasure over and along the small portion of land of the width of ten feet on the North East side of the Road between the points "G and H" which is coloured yellow on the plan subject nevertheless as to the strip of land at Thistlebarrow between the points "g and H" on the said plan to a full and free right and liberty for the Bournemouth gas and Water Company their successors and assigns and their agents and servants and all other persons authorised by them at their own will and pleasure by night and by day to return pass or repass with or without horses carts wagons or other vehicles and whether laden or unladen (in common with the Grantor and is Son, Joseph Cooper Dean their heirs and assigns) through over and along the strip of land of the width of twenty feet lying between a certain piece of land comprising two acres one rood twelve poles belonging to the said Company at Thistlebarrow and the Holdenhurst Road as the said strip of land is shown in the plan drawn on an Indenture dated the 13th day of November 1897 and made between the Grantor of the first part Joseph cooper Dean of the second part and the Bournemouth Gas and Water Company of the third part and therein distinguished by the colour Brown and for all purposes connected with the use and occupation of the piece of land conveyed to the said company by the said Indenture.
AND subject to the liberty reserved by the said Indenture for the said Grantor and the said Joseph Cooper Dean or their assigns in case they should so desire to forma road with proper drains and channels over the said strip of land or to permit the said Corporation so to do and so that such road when formed might be of any width not less than twenty feet consistently with the Byelaws of the Borough of Bournemouth yet so that the making of such road should not interfere with the right of way so granted to the company their successors and assigns as aforesaid and so that no expense be incurred by the Company in respect of the formation of such road or in anywise relating thereto.
AND this indenture also witnesseth in further pursuance of the said Agreement and powers and in consideration of the premises the said Grantor as settlor and Beneficial Owner hereby conveys unto the Council ALL THAT piece or parcel of land forming part of land known as Van Diemans land containing by estimation four acres or thereabouts and particularly set out on the said plan and thereon coloured yellow (except as hereinafter mentioned) TO HOLD the same unto the corporation their successors and assigns in fee simple subject nevertheless to the annuities above mentioned To the end and intent that the same piece or parcel of land may be added to and for ever remain part of the QUEENS PARK and be maintained by the Corporation and enjoyed by the Public accordingly
EXCEPTING and always reserving unto the Grantor and his successors ad Title the Owner or Owners for the time being of the Dean Estates at Holdenhurst and Bournemouth aforesaid and their assigns and his and their family and servants and all persons authorised by him or them the full and free right and liberty to pass and repass with or without horses and other animals cars and carriages from time to time and at all times hereafter at his Will and pleasure through the gate on the road between the points "A and B" on the said plan
AND the said Grantor doth hereby covenant with the Corporation that he will at all times hereafter pay the annuities bequethed by the Will of the said William Clapcott Dean as and when they become due and also all estate and succession duties which may be payable on the cesser of the said annuities or otherwise in respect of the premises hereby conveyed
AND will at all times hereafter save harmless and indemnify the Council their successors and assigns and the said premises from and against all distresses losses actions costs damages and expenses which they may be put to on account or in consequence of the non-payment of the said annuities bequeathed by the said Will of the Testator or the said duties or any or either of them as and when hey same shall become due AND it is hereby agreed and declared that the small triangular piece of land coloured blue on the plan is the property of the Grantor and has been fenced in by the Corporation at his request and it is understood and is hereby witnessed that the said fence and gate are the property of the Corporation who will only remove the same whenever requested by the Grantor so to do
IN WITNESS whereof the said parties of the first and second parts have hereunto set their hands and seals and the seal of the Corporation has been hereto affixed the day and year first above written.
Memorandum - by a deed of grant made the 17th day of June 1976 between the Council of the Borough of Bournemouth (hereinafter called "the Council") of the one part and the Bournemouth and District Water Company whose registered office is situate at 24 Farringdon Street in the City of London (hereinafter called "the company") of the other part the council granted unto the company in fee simple full right and liberty to lay and water main within a strip of land the approximate centre line of which is indicated by a red line endorsed in a plan annexed to the said Deed and to maintain the same and to do all things reasonably incidental thereto.
CONVEYANCE OF LAND ON THE MALMESBURY PARK ESTATE, DATED 27TH APRIL 1908.
-EXTRACT-
Now this Indenture witnesseth that in pursuance of the said agreement[9] […], all those pieces or parcels of land coloured green and marked “D”[10] & “F”[11] on the plan annexed hereto being situate […] as to the piece “F” adjoining Queen’s Park in the Parish of Holdenhurst in the County of Southampton and containing by admeasurement ten acres three roods eight poles or thereabouts […] to hold all the same premises unto and the to the use of the Corporation, their successors and assigns […] and whereas the Corporation have duly made up and completed the public walks and pleasure grounds over the land at “D” but those agreed to be made on the plot marked “F” have not yet been completed, and the Corporation therefore do hereby for themselves their successors and assigns covenant with the Vendor, his heirs and assigns as follows. That they the Corporation their successors and assigns will at their own cost fence level turf lay out and make up the said lands firstly hereby conveyed coloured green and marked “F” on the said plan and form the same into public walks and pleasure grounds under the provisions of the various Acts of Parliament enabling the Corporation as Urban Authority in that behalf and complete the same within five years from the date of the said “Purchase Agreement” and will forever maintain the same and also the land coloured green and marked “D” on the same plan as public walks and pleasure grounds under the management and regulation of the Corporation […].
And this Indenture further witnesseth that in pursuance of the said agreement the Corporation as beneficial owners do hereby grant unto the Vendor that he the Vendor his heirs and assigns and other the owner or owners for the time being of the Malmesbury estates and his and their tenants servants workmen and others shall have at all times hereafter full and free rights (exercisable only subject to and in conformity with the Park byelaws for the time being in force) of ingress egress regress and passage on foot and with or without horses and private carriages at all times whenever Queen’s Park shall be open to the public from and to the lands of the Vendor and allow the owner or owners aforesaid at the points marked “D”, “C”, “G”, “H” and “J” on the said plan to from and over Queen’s Park from and to the Holdenhurst Road and any other point of entrance to or exit from Queen’s Park but as to private carriages over any carriage drives only that may be constructed from time to time in Queen’s Park.
NOTES: The first section quoted above seems clearly to imply that the Corporation were acquiring the land under statutory powers, namely the Bournemouth Park Lands Act 1889 and/or the Public Health Act 1875.
However, the 1904 Sale Agreement states that the Corporation “shall enter into a covenant to forever maintain [plot “F”] as Public Walks and Pleasure Grounds under the management and regulation of the Corporation”, as confirmed by the Indenture. The second section quoted above creates further covenants.
That a charitable trust was established is supported by the fact that this particular plot “F” was bought at a price of £10 per acre, which was “less than full consideration”.
For a fuller examination of the question, see Bath & North East Somerset Council v. H .M. Attorney General, 2002.
11th FEBRUARY 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Land near Rifle Range.
The Town Clerk called attention to the covenant in the conveyance of 27 April, 1908, from the Earl of Malmesbury to the Corporation, under which the Corporation are to complete the formation of this land into public walks and pleasure grounds within 5 years from 22 June, 1904.
The Committee decided to visit and instructed the Town Clerk to apply to the Earl of Malmesbury for an extension of the time within which the works are to be carried out to 7 years.
Tuition in Golf
A letter (dated 10th January) from Mr. H. Godwin Austin was read suggesting the setting apart of ground near the Rifle Range at Queen’s Park for tuition in golf. Consideration was deferred for the Committee to visit.
Adopted & Council 2 March 1909
1ST MARCH 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Tuition in Golf Land near Rifle Range.
The Committee visited and inspected the land near the Rifle Range.
Recommended — That the surveyor be instructed to prepare a scheme for laying out the land having regard to the covenant referred to, and to the suggestion that the land might be used for the giving of lessons in golf.
Adopted 4y Council 2”” March / 909
11TH MARCH 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Tuition in Golf Land near Rifle Range.
The Committee, on further consideration of this matter, instructed the Surveyor to prepare a scheme for laying out the land near the Rifle Range, having regard only to the covenant referred to and disregarding the suggestion that the land might be used for the giving of lessons in golf.
Adopted by Council 6th April11909
15TH APRIL 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Land near the Rifle Range.
The Town Clerk reported (verbally) that he was in communication with Lord Malmesbury’s agent as to the extension of time for the laying out of this land, but had not yet received a reply.
Adopted by Council 4th May 1909
13TH MAY 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Land near the Rifle Range.
A letter (dated 27 April) from Mr. Frank Newman, Lord Malmesbury’s agent, was read, enquiring whether he might assure his Lordship that there was no intention on the part of the Corporation to vary the originally intended use of the land in question, but what was required was simply an extension of time to complete the work at convenient dates.
The Town Clerk reported that he had replied so far as he was aware there was no desire to vary the originally intended use of the land, the sole object of the Council being to obtain an extension of time on the grounds mentioned.
The Committee approved.
Adopted 4y Council 1”June 1909
(No additional notes in Dorset Record Office master copy)
15TH JULY 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Laying out of land near the Rifle Range.
The surveyor reported (verbally) that he was preparing the plans asked for.
Consideration was deferred to the next visiting meeting
Adopted by Council 27th July 1909
29TH SEPTEMBER 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Laying out of land near the Rifle Range.
The Surveyor submitted plans of the proposed laying out of this land, and stated that he had ascertained from the Borough Accountant that there was a balance in hand on the £4,958 Queen’s Park Extension Loan of £2,308 15s. 4d., which would be available and about sufficient for this work.
Recommended-
a) That the plan be approved and the Surveyor instructed to have the works carried out.
b) That the Surveyor consider and report at the next meeting as to the conversion of the small cottage or hut near the Rifle Range into a caretaker’s cottage.
Adopted by Council 5th October 1909
14TH OCTOBER 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Laying out of land near the Rifle Range.
Consideration deferred
Adopted by Council 6th December 1909
11TH NOVEMBER 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Laying out of land near the Rifle Range.
a) The Committee had before them the plan approved on 29 September, and instructed the Surveyor to communicate with the Committee as to the provision of the necessary labour.
b) Cottage. Outstanding
Adopted by Council 6th December 1909
16TH DECEMBER 1909, PARKS & PLEASURE GROUNDS COMMITTEE
Lqying out of land near the Rifle Range.
The surveyor submitted plans showing methods of dealing with the cottage and two other buildings nearby, and was instructed to obtain prices for carrying out the work suggested, for the consideration of the Committee.
Adopted by Council 4th January 1910
17TH JULY 1912, PARKS & PLEASURE GROUNDS COMMITTEE (VISITING)
Cottage near Rifle Range. [Following the recommendation of 13th June 1912 that the Committee consider the desirability of having a man resident in one of the cottages near the Rifle Range]
A letter (dated 5 May) from Mr. H. Godwin Austen was read deprecating the abolition of this building.
The Committee, having inspected the building, recommended that the building be pulled down, and the Surveyor instructed to submit alternative sketches of a building providing accommodation (1) for the public, (2) for an employee; and (3) for a public convenience.
Adopted by Council 30th July 1912
12TH DECEMBER 1912, PARKS & PLEASURE GROUNDS COMMITTEE
Pavilion near Rifle Range.
The Borough Surveyor submitted plan. Consideration was deferred.
Adopted by Council 7th January 1913
16TH JANUARY 1913, PARKS & PLEASURE GROUNDS COMMITTEE
Pavilion near Rifle Range.
This matter was referred to the sub-committee for consideration and report.
Adopted by Council 4th February 1913
19TH NOVEMBER 1919, PARKS & PLEASURE GROUNDS COMMITTEE
Queen’s Park Extension.
Recommended — that the ground lying to the east of the cottage be reserved for tennis courts.
Adopted by Council 2 December 1919
16TH FEBRUARY 1933, PARKS & PLEASURE GROUNDS COMMITTEE
Land near Rifle Range [the same land as referred to on 19th November 1919]
A letter (dated 20th January) from Mrs. H. Godwin Austen was read, suggesting that the sunken ground near the Rifle Range should be laid out with shrubs, and seats provided for the use of the public.
Recommended — that the general sub-committee be asked to visit and report.
Adopted by Council 7th March 1933
16TH MARCH 1933, PARKS & PLEASURE GROUNDS COMMITTEE
Land near Rifle Range.
The sub-committee visited but are not prepared to adopt the suggestion made by Mrs. Godwin Austen that the sunken ground near the Rifle Range should be laid out with shrubs etc. and seats provided under the banks.
Adopted by Council 4th April 1933
16TH APRIL 1934, PARKS & PLEASURE GROUNDS COMMITTEE
Land near Rifle Range.
A petition signed by upwards of 150 residents in the neighbourhood was read, asking that the piece of sunk ground between the green-keeper’s cottage and the Rifle Range at Queen’s Park might be provided with seats under the bank and the banks planted with pampas grass, bamboo etc.
Recommended — that the petition be referred to the sub-committee for consideration and report.
Adopted by Council 1st May 1934
14TH MAY 1934, PARKS & PLEASURE GROUNDS COMMITTEE
Land near Rifle Range, Queen’s Park.
The subcommittee visited and inspected the piece of sunk ground near the Rifle Range at Queen’s Park but are not prepared to accede to the request of the memorialists to have seats placed here and the banks planted.
The sub-committee, however, instructed the Parks Superintendent to arrange for 6 seats to be placed among the trees immediately to the west of this land for the use of the public and to report with plans and estimate of cost for improving the surface of the sunk ground for use as a children’s playground.
Adopted by Council 5th June 1934
14TH JANUARY 1935, PARKS & PLEASURE GROUNDS COMMITTEE
Land at Queen Park.
[In response to previous discussions]
Letters (dated 7th January) from the National Citizens’ Union and (9th and 11th January) from Mr. C.W Prance, together with a petition from owners and occupiers of property in the neighbourhood, were read, protesting against the suggestion that this land should be used as a playing field.
Recommended — that the Acting Parks Superintendent be instructed to report with estimate of cost for laying out this land as a pleasure garden.
Adopted by Council 5th February 1935
11TH FEBRUARY 1935, PARKS & PLEASURE GROUNDS COMMITTEE
Land at Queen’s Park.
The Town Clerk submitted further correspondence with regard to the proposed layout of this land.
The Committee, after inspecting the land, instructed the Parks Superintendent to arrange for it to be cleaned and a number of shrubs and trees to be planted. The intention of the Committee is to leave the land as far as practicable in its natural state.
Adopted by Council 5th March 1935
16TH MARCH 1959, PARKS & PLEASURE GROUNDS COMMITTEE
Memorandum attached to master copy of minutes
Rents of properties occupied as service tenancies
(iii) Rifle Range Cottage (Mr. Clapcott, foreman). That;
a) no alteration be made in the present arrangement under which no rent is charged and the Council is responsible for the general and water rates and internal decorations, but
b) in future the tenant pays for gas and electricity supply and
c) the tenancy be reconsidered when the property becomes vacant.
16TH SEPTEMBER 1959, PARKS & PLEASURE GROUNDS COMMITTEE
Memorandum attached to master copy of minutes
Rifle Range Cottage
Instructions — these are that the Finance Committee be informed that the tenant of the Rifle Range Cottage is now negotiating for alternative property and in the circumstances this committee would now wish to have the finance committee’s ruling as to the grant of a rent allowance of £40 per annum during the period he should remain in the Corporation’s employ following the vacation of Rifle Range Cottage.
19TH OCTOBER 1959, PARKS & PLEASURE GROUNDS COMMITTEE
Memorandum attached to master copy of minutes
Rifle Range Cottage
Instructions: these are that Mr. WJ. Clapcott, Foreman of Golf Courses, be granted £40 per annum in respect of special duties, as from the date he vacates the Rifle Range Cottage in Queen’s Park.