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News and Cases

04.12.18

Densham v CCEW [2018] UKUT 0402 (TCC) – Allotments, enclosure awards and the mortmain red herring

Kate Selway has successfully represented the Charity Commission before the Upper Tribunal (Tax and Chancery) in an appeal brought by local allotment holder Pauline Densham, who sought to argue that the wording of two mid 19th century enclosure awards allotting land in Hughenden, Bucks “on trust for the labouring poor” did not create a charitable trust of allotment land. The appellant went further and argued that the words did not create a trust, capable of being enforced by the courts, at all.

In a detailed decision the two Upper Tribunal judges (Falk J and Judge Alison McKenna) considered arguments on the justiciability of trusts, the Enclosure Act of 1845, the distinction and overlap between property held by local authorities for different public purposes, the tangled web of 19th and early 20th century legislation on allotments and (even) the relevance of a mid 18th century statute of mortmain.

Miss Densham’s appeal from the First Tier Tribunal was dismissed. She was represented pro bono by Mark Herbert QC and Dr Christopher McNall.

Click here to read the full decision.