Analysis
Introduction
This case involved two inclosure awards made in the nineteenth century under powers conferred by s73 of the Inclosure Act 1845. Each award allotted land to the Churchwardens and Overseers of the Poor for the parish “to be held by them and their successors in trust as allotments for the labouring poor of the said parish …” The land, which is in Buckinghamshire, is now held by Hughenden Parish Council.
The Charity Commission considered that the land held for local allotments was subject to charitable trusts for the relief of the poor. The allotments were originally registered as a charity known as “Allotments for the Labouring Poor” in 1966, but the charity was removed from the register in 2008 for failure to file accounts. It was then restored to the register in 2011 and the Charity Commission decided to make a fully-regulating Scheme for it under s18 of the Commons Act 1899 and s67(2) of the Charities Act 2011. D, the Appellant, an allotment-holder and a local resident of Hughenden, contended that the land was not held on charitable trusts and that the Charity Commission did not have jurisdiction to maintain the registration of the charity and exercise its scheme-making powers in relation to it.
Following an oral hearing, the First Tier Tribunal (General Regulatory Chamber) (Charity) held that the inclosure awards established charitable trusts; that the charity continued to exist; that the Charity Commission had jurisdiction to make a scheme; and that it was not obliged to remove the charity from the register. D appealed to the Upper Tribunal Tax and Chancery Chamber. The Hughenden Parish Council and HM Attorney General were invited to be joined to the proceedings but declined.
Arguments
It was argued on behalf of D that the words “in trust” in the awards did not create a charitable, or “true trust”, but rather a “higher trust” (referred to as a “trust in the higher sense” in Tito v Waddell (No.2) [1977] 1 Ch 106), for which the courts have no enforcement role; the subsequent legislation was also inconsistent with a view that the land was impressed with charitable trusts. On behalf of the Charity Commission it was argued that a charitable trust was intended: the context of the inclosure awards constituted a compensatory measure for the loss of common land and the rights exercisable in relation to it, in which Parliament dedicated, through the mechanism of a “true trust”, land as allotments for the labouring poor; the subsequent legislation was consistent with a view that the land was impressed with charitable trusts.
Held
The appeal was dismissed: the lands allotted by the inclosure awards were held subject to valid charitable trusts; the Charity Commission was correct to maintain the charity on the register of charities; and was entitled to exercise its scheme-making powers in relation to it.
As a matter of construction of the Inclosure Act 1845, the use of the word “trust” in s73 was careful and deliberate, distinguishing between this land, which must be held on trust, and other land belonging to the parish. It was doubtful that the concept of a trust in the higher sense had developed as a generally recognisable concept by 1845. The Act established conditions necessary for the creation of a charitable trust in an inclosure award:
(a) There was an element of beneficence in the compensatory nature of the award;
(b) The land was dedicated to the relief of poverty, an accepted first-head charitable purpose;
(c) The was an express reference to a “trust” in the Act and the awards (and that word was considered to have been used in its technical sense); and
(d) As equity did not want for a trustee, the transfer of land to the Churchwardens and Overseers of the Poor to hold “in trust” had the effect of appointing them as trustees.
JUDGMENT MRS JUSTICE FALK, JUDGE McKENNA: Background [1] The Appellant is an allotment-holder and local resident of Hughenden, Buckinghamshire. The Charity Commission considers that certain land held by Hughenden Parish Council for local allotments is subject to charitable trusts for the relief of the poor. The Appellant contends that the land is not so held. …Continue reading "Densham v Charity Commission [2019] WTLR 473"