What follows has been prepared from the skeletal “Analysis of the legal and financial position” of Southwold Harbour prepared and promulgated by Steve Macfarlane in 2007 following his extensive research into Suffolk County Archives as to true title of the Harbour Lands.
I have relied extensively upon his research in compiling this brief. The views herein expressed, based upon his research, are, however, mine.
Graham Hay Davidson, FRICS
- The story really starts with the granting, by Henry VII in 1489, of the Southwold Charter and it is believed that this charter raised the status of the harbour to that of a haven port to provide refuge for shipping in bad weather.
It is my understanding that haven ports are maintained for the public benefit and are thus charitable operations. (See Charities Act 2011 Chapters 1 and 2 attached hereto as Appendix 3 and the Further Opinion of Robert Arnfield QC para 9(iii) in Appendix 13). I have seen the original of the Charter, which is held in the County Archives in Ipswich, whilst researching the topic of ownership.
It is all in Latin and there are no pictorial attachments which might, either show the scope of the harbour or give weight to the notion that it did indeed create a haven port.
- William Godyll was one of the first two Bailiffs created by the Charter of 1489 and was clearly a man of substance trading in fish from Iceland and owner of much land and many vessels. His will of 1509, a translation of which is attached hereto as Appendix 1, leaves to the “Bayliffs and Commonalty of Southwold” after the decease of his wife Margaret “my place called Skylmans with all the lands tenements rents and services heaths and marshes”. It is believed that this will created the charitable trust which exists today and possibly included the harbour. There is however no drawn record available of the scope of “Skylmans” so one cannot rely upon this will alone to aver that the harbour was part of that which was willed to the town by this document.
SEE COPY OF THE WILL
- In 1741 in the reign of George II there was enacted “An Act for opening, cleaning, repairing and improving the Haven of Southwold in the County of Suffolk” (attached hereto as Appendix 2) Please note that the harbour is here described as a “the Haven” supplementing the notion of its creation by the charter of 1489. This Act however does give specific details for the appointment of “Commissioners and Trustees” whose duties were to be financed by the imposition of “rates, duties and sums of money” for and towards “the opening, cleansing, scouring, widening, depthening, repairing, and improving the said haven, port, or harbour, and keeping the same so opened and repaired”. In my untutored opinion this Act forms the first real evidence of the creation of the charitable enterprise of Southwold Harbour upon which we may rely.
- Reference is now made to Part 1 of the Charities Act 2011 Chapter 1 and 2 (attached hereto as Appendix 3) whereat the meaning of Charity and Charitable Purpose are defined. A “charity means an institution which:- (a) is established for charitable purposes only, and (b) falls subject to the control of the High Court… ….” The 1741 Act forms what I contend to be a charitable enterprise which, self-evidently by the very fact of being created by an Act of Parliament, is subject to the control of the High Court through the Southwold Harbour Order of 1933. (Vide para 38 vol.5(2) Halsbury’s Laws 2001 reissue).
- A charitable purpose is defined in the Act thus:- “Meaning of “Charity” (1) For the purpose of the law of England and Wales a charitable purpose is a purpose which:- (a) falls within section 3(1) and (b) is for the public benefit (See Section 4)” Section 3(1) sets out the various categories of charitable purposes and I would contend that the Southwold Harbour charitable purpose falls within Sub-clause (i) of paragraph 3(1) being “the advancement of environmental protection or improvement”. The sole purpose of the right to levy rates and duties under the 1741 Act was for the maintenance and improvement of the harbour for the public benefit.
- At Section 4 we find the following public benefit requirement defined thus :-“(1) In this Act “ the public benefit requirement” means the requirement in Section 2(1)(b) that a purpose falling within section 3(1) must be for the public benefit if it is to be a charitable purpose.” It is contended that the sole purpose of the raising of funds under the 1741 Act was for the repair and maintenance of the harbour. Money raised in the harbour was to be spent in the harbour as a charitable enterprise.
- Southwold Haven Improving Act 1830 is described as “An Act to continue the Term, and render more effectual the several Acts passed for opening, cleansing, repairing, and improving the Harbour of Southwold, in the county of Suffolk”. (See relevant extracts in Appendix 4) The preamble continues thus:- “And whereas since the passing of the said Acts considerable Improvements, and Alterations have been made, and several Sums of Money have been borrowed, to keep the said Haven and Harbour open and in good Repair and to answer the Purposes thereby intended… …”. The use of these words emphasises and underlines the charitable nature of the harbour management in that it is clearly being carried out for the public good.
- Further, the Act contains precisely the same provision at Article 57 entitled “Application of money” as is recorded in the Act of 1741. “ And be it further enacted, That all the Money to arise by or from the said Duties hereby granted or to be received from Time to Time by virtue of this Act… … shall be applied and disposed of, in the first Place, in paying and defraying the Costs, Charges, and Expences which shall be incident to and attending the obtaining and passing of this Act, and… … in defraying the Costs, Charges, and Expences of cleansing, repairing, maintaining, deepening, straightening, widening, and supporting the said Harbour… …”.
- There appears no provision within the Act of 1830 that might enable the “Commissioners” to declare funds, or any of the same, as surplus to requirements to be siphoned off for other unspecified purposes.
This Act appears to me to continue to support the concept that all monies raised in the harbour must be spent in the harbour as a charitable enterprise.
- Turning now to the Southwold Harbour Order 1898, (Attached as Appendix 5 hereto) the purpose of which is described as being “To transfer to and vest in the Mayor, Aldermen and Burgesses of the Borough of Southwold in the County of Suffolk the Undertaking of the Commissioners of the Harbour of Southwold to dissolve those Commissioners and for the Improvement Maintenance and Regulation of the Harbour.” My reading of this preamble is to the effect that the Commissioners, whose tasks were originally identified in the Southwold Haven Act of 1741, were here being replaced by the Corporation of the Borough of Southwold.
- Article 3 of the 1898 Act states thus “The Undertakers … … The Mayor Aldermen and Burgesses of the borough of Southwold in the County of Suffolk (in this Order referred to as “the Corporation”) acting by their Council shall be the Undertakers for carrying this Order into execution”. Southwold Borough Council thus became the “Corporation” within the meaning of the Act and, I verily believe, so remained until the Act of 1972.
- At Article 16 the following is recorded:- “ (1) The rates to be levied by the Corporation for the time being under this Order shall be adjusted by the Corporation within the maximum rates specified in the Schedule to this Order in such a manner that so far as possible the income of the harbour shall not for the time being be more than is sufficient for the purpose of this Order”.
- Article 16 (2) states thus “If at any time it appears to the Board of Trade … …
that the clear annual income derived from the harbour on the average of the then three last preceding years … … exceeds the amount sufficient for the purposes of this Order that the Board may, if they think fit reduce the maximum rates to such sums as will be sufficient to provide the amount aforesaid … ….”. The Corporation were thus constrained not only to the raising of just sufficient money for the purpose of maintaining the harbour, but also, if, after three years accounts, the monies raised exceeded the needs of the harbour, then the Board of Trade had the power to reduce the rates and charges until income matched outgoings.
- Article 29 of the Act states thus:- “The Corporation shall apply all the rates and other money received by them by way of revenue in respect of their harbour undertaking for the purposes and in the order following and not otherwise (that is to say):-
1) “In payment of expenses properly chargeable to the revenue of conducting managing and maintaining the harbour and works connected therewith.
2)In paying… …the interest… … on money borrowed… …
3)In repayment to… …the Corporation of any money advanced… …
4)In paying the instalments… …in respect of principal money borrowed… …
5)In forming and maintaining a contingency fund… …
6)In the general improvement of the harbour.”
- None of the foregoing categories either expressly or impliedly indicates that the Corporation may remove surplus funds for other purposes.
Article 16 clearly states that the Corporation had a remit to raise only such funds as were necessary for the purposes of the Act and if they raised more than was required by this Act, over a period of three years, the Board of Trade would intervene and cut the rates of duty so that they were left with only that which was necessary to carry out their obligations. The monies raised in the harbour were to be expended in the harbour for public benefit.
- In 1907, a further provisional order was prepared by the Board of Trade under the General Pier and Harbour Act 1861 which received Royal Assent as a Confirmation Order on 2nd August 1907. (Relevant extracts are appended hereto as Appendix 6)
- The preamble to this order states thus:- “To make further Provision for the maintenance of the Harbour of Southwold in the County of Suffolk and as to the Rates to be charged thereat and for other purposes”
- Article 1 (1) of the Act of 1907 states thus :- “This Order may be cited as the Southwold Harbour Order 1907 and shall be read with the Southwold Harbour Order 1898 as amended by this Order… …” (my underlining). Under Article 2 it is recorded that “The Corporation” means the Mayor Aldermen and Burgesses of the Borough of Southwold”.
- The general purpose of this Order appears to be to sanction the lease of the harbour lands by the Corporation to The Southwold Harbour Company run by Anthony and William Fasey.
Essentially the Faseys were bound by the Act to observe and perform the duties and responsibilities vested in the Corporation by the 1898 Act.
Article 16 of the 1898 Act was amended by Article 26(1) of the 1907 Act in effect to allow the Southwold Harbour Company to trade and make a return on its investment. The Board of Trade reserved the right however to check that the Company was not making excess profits (over a three year period as an average). In the event that such were the case the Board of Trade had the right to reduce the rates leviable under the Order.
- In the event that the Southwold Harbour Company should fail and the Corporation take back the Harbour Lands, then the rights of the Corporation and Board of Trade reverted back to the provisions set out in Article 16 of the 1898 Act.
It is a matter of record that the Southwold Harbour Company did founder and that the Corporation bought back the harbour from the liquidators for the sum of ten shillings.
- There is nothing in the 1907 Act, when read with the 1898 Act, which alters, modifies or affects in any way the charitable nature of the harbour undertaking since its inception in 1741. Save for the Southwold Harbour Company’s reasonable expenses of operation, (auditable by the Board of Trade), monies raised in the harbour operation were to be spent in the harbour for public benefit.
- The current Act which remains as the statutory instrument governing the administration of the charitable harbour undertaking is the Pier and Harbour Orders (Elgin and Lossiemouth and Southwold) Confirmation Act 1933 to be cited as the Southwold Harbour Order 1933. (Referred to hereafter as the Order) Whilst I do have before me a complete copy of the Order, it runs to forty nine pages which is beyond my capacity to photocopy. I append hereto as Appendix 7 those relevant extracts referred to hereinafter.
- By the 1898 Act, Southwold Borough Council was made “the Corporation” within the meaning of that Act. By Article 3(1) of the 1933 Order, the following is stated:- “ “the borough” means the borough of Southwold;” and “ “the Corporation” means the mayor aldermen and burgesses of the borough of Southwold;” Within the body of the Act wherever the Corporation is referred to, this means those personages who, from time to time, comprised the borough Council of Southwold. Reference has been made in para 22 supra to the bankruptcy of the Southwold Harbour Company and Article 6(1) of the 1933 Southwold Harbour Order refers to the “conveyance” attached to the Order as the First Schedule. By this conveyance, the Corporation bought back the Harbour from the liquidators for the sum of ten shillings. The Corporation were thus again sole “owners” of the harbour and obligated by the terms and conditions laid down in the Order.
- By Article 7 the Corporation, now repossessed of the harbour, were permitted to appoint a committee to run the harbour in accordance with the provisions of the Order “for such time as the Corporation may determine” comprising “persons of experience in or having a special knowledge of the harbour undertaking… ..and any such person may be at any time removed by the Corporation from such committee… …”.
- Under Article 39 “Application of Harbour Revenue” there is recorded the mandatory requirements for the expenditure of revenues. The following is stated:- “The Corporation shall apply the harbour revenue including the interest on the reserve fund… … in the order following and not otherwise” (The emphasis is mine)(1) in payment of the costs of and connected with the preparation and making of this order… …(2) in payment of the expense properly chargeable to the revenue of the maintenance repair and management of the harbour undertaking… …(3) in payment… …of the interest accruing on money borrowed… …
(4) in payment of the instalments… …in discharge of any moneys so borrowed… … and in forming a sinking fund…
(5) in extending and improving… …the harbour undertaking… …
(6) in making such payments… …into a reserve fund… …
(7) in repayment to the general rate fund of all moneys paid thereout for the purposes of the harbour undertaking…
(8) in reduction of any principal moneys borrowed under this Order”.
- The categories of expenditure set out in Article 39 of the Order clearly reflect the constraints placed upon the Corporation by Article 16 of the 1898 Act in that after the repayment of moneys borrowed or interest upon the same, all revenue was to be used for the repair, maintenance and improvement of the harbour. This underlines the charitable nature of the harbour undertaking which has continued in an unbroken line since the Act of 1741.
- It might appear to be the case that from the date of the Order of 1933 up until the date of 1974, being the date when Southwold Borough Council ceased to exist under the changes brought about by the 1972 Local Government Act, Southwold Borough Council were, at all material times, the “Corporation” within the meaning of the 1933 Southwold Harbour Order and were possessed of the charitable undertaking at Southwold Harbour.
- The Local Government Act 1972 Chapter 70 (the relevant parts of which are appended hereto as Appendix 8) made provision for changes in the structure of local government, essentially abolishing Borough Councils and creating the District Council structure. Southwold Borough Council (SBC) was thus superseded by Southwold Town Council (STC) with some of their erstwhile powers and responsibilities being passed to the newly formed Waveney District Council (WDC) and some to Suffolk County Council.
- Southwold Harbour, being a charitable undertaking, was not passed to WDC by reason of the provisions set out in Article 210 of the Local Government Act.
- Article 210 sets out the manner of dealing with charities and states at Sub-section (1) thus:- “Where, immediately before 1st April 1974, any property is held, as sole trustee, exclusively for charitable purposes by an existing local authority for an area outside Greater London… … that property shall vest (on the same trusts) in a new local authority in accordance with sub-sections (2) to (5) below”
- The sub-section (2) referred to in the previous paragraph states thus:- “Subject to subsection (3) below, where the property is held by one of the existing authorities specified below, and is so held for the benefit of, or of the inhabitants of, or of any particular class or body of persons in, a specified area the property shall vest in the new authority specified below… …that is to say:-(b) where the existing authority is the council of a borough… … the new authority is the council of the parish … “Southwold Town Council is, within the meaning of this Act, the Parish Council for the Town of Southwold. Thus it is clear that upon the demise of Southwold Borough Council the charitable undertaking of Southwold Harbour passed to the successor council, Southwold Town Council. STC thus became the “Corporation” within the meaning of the Harbour Order and were and are still bound by the conditions of the Order of 1933. The provisions of this Act I believe to be perfectly clear. The “ownership” of the harbour passed from Southwold Borough Council to Southwold Town Council and to no other party. STC remain the Corporation within the meaning of the Order to this day.
- At Article 131 (1) the following is recorded:- “Nothing in the foregoing provisions of this part of the Act… …(b) shall affect or empower a local authority to act otherwise than in accordance with, any provision contained in, or any instrument made under, any of the enactments specified in sub-section (2) below and relating to any dealing in land by a local authority or the application of capital money arising from any such dealing”
- At Sub section (2) Item (k) the following is recorded:- “any local Act (including an Act confirming a provisional order)” (the emphasis here is mine). The Southwold Harbour Order of 1933 is one such Confirmation Order confirming a Provisional Order. My understanding of this provision is that, notwithstanding the provisions of the 1972 Local Government Act, Southwold, as a local authority were still bound by the provisions of the Southwold Harbour Order 1933, being a Confirmation Order, with regard to the rights and obligations imposed by the Order including, inter alia, the disposal of any land and, in particular, the Southwold Harbour Lands.
- Whilst WDC took over the facilities not the subject of any charitable trust, like the car parks and the caravan site, I am advised that the harbour was to have remained as STC’s responsibility. It was noted, however, that the money to run the harbour actually came from the harbour caravan site and if WDC took over the caravan site STC could not afford to run the harbour. It was therefore agreed, as I understand it, albeit reluctantly, that the management of the harbour should be entrusted to WDC. It is recorded in the Southwold Borough Council minutes for 1974 that “the management of the Harbour Undertaking be handed over to WDC” (my emphasis). All that was handed to WDC was the management; they did not hand over the freehold of the Harbour Lands. Councillors John Winter and Wiggy Goldsmith (note; Wiggy Goldsmith has since passed away) can both speak to this as they were both on the Council at the time. Affidavits should be prepared from both these gentlemen to give credence to what occurred at the time.
- WDC claim to “own” the harbour and have, for the past 38 years treated the charitable undertaking as a cash cow to fund projects in Lowestoft and elsewhere by a process of declaring harbour funds “surplus to requirements” and transferring such sums to the general rate fund whilst failing to honour their obligations to repair and maintain the harbour either timeously, adequately, or, in most cases, at all. Funds were also deducted from the Harbour Account annually in respect of depreciation but which appear, subsequently, to have disappeared. (Vide para 52 infra)
- There is nothing within the Harbour Order that would enable the corporation to “give” the Harbour Lands to WDC (vide para 34 supra). The corporation did not “lease” the Harbour Lands to WDC because no such lease exists. The corporation did not “sell” the Harbour Lands to WDC because there is no conveyance which might support such theory. As STC well knew, any such transfer required ministerial consent, no such consent was obtained. (see Appendix 13 para 5 (iii)). It has even been suggested that WDC secured the harbour lands by “adverse possession” and that the corporation are now estopped by the Statute of Limitations from recovering their property. The fallacy here is that WDC’s involvement in the harbour was at the request of the corporation and their alleged possession of it was not therefore “adverse” even if it were possible to acquire charitable land by a process of adverse possession. The only way in which WDC could have usurped the title of “corporation” within the meaning of the Harbour Order is by an Act of Parliament which simply did not happen.
- WDC’s true status is that of a “Committee of Management” appointed under Article 7 of the Harbour Order. (vide para 26 Supra) and the corporation can dismiss this committee and appoint others to act as the Committee of Management at any time.
- Having examined the facts of the matter as detailed above it is, I believe, irrefutable that the charitable enterprise of the Southwold Harbour Undertaking was placed in the power, possession and control of the “Corporation” as referred to in the Southwold Harbour Order of 1898 (vide para 12 supra) and the “Corporation” was therein identified as Southwold Borough Council. (Vide Article 3 of the Act of 1898 in Appendix 5).
- Further, it is, I believe, irrefutable that Southwold Borough Council as the said “Corporation” remained in power, possession and control of the harbour undertaking until 1974 whereupon, in accordance with Article 210 of the Local Government Act of 1972, (Vide Appendix I) the charitable undertaking was transferred to sole power, possession and control Southwold Town Council who became and still remain to this day the “Corporation” within the meaning of the Order of 1933. I can put no other construction on the facts as I have set them out.
- Having dealt with what I perceive to be the facts in this matter, this discourse would not be complete without reference to the various opinions obtained variously by Southwold Harbour and River Protection (SHARP), Southwold Caravan Owners Association,(SCOA) WDC and STC. These opinions did not necessarily deal with the question of overall ownership but were related, in large part, to the ownership of that part of the Harbour Lands used as the Caravan Site. The opinions of learned Counsel are, nevertheless, in parts, relevant to the ownership of the harbour lands. It must, however, be borne in mind that strenuous efforts were made by WDC and STC to avoid the question of ownership despite our advice that it was the key issue for resolution as a consequence no Counsel was ever asked their opinion upon what must be the most fundamental question of all. Who owns the harbour? I will deal with opinion each seriatim.
- The opinion of Matthew Hutchins (Appendix 9 hereto) was obtained by Richard Buxton for SHARP and SCOA by reason of the proposal by WDC to sell the caravan site and the camp site to the highest bidder. The caravan site is part of the Harbour Undertaking as depicted in red in the Appendix to the Southwold Harbour Order 1933 whilst the camp site is part of Havenbeach Marsh owned by STC as Trustees of the Will of William Godyll; neither part being owned by WDC. Whilst Mr Hutchins refers, in his opinion frequently to the North Denes site, the North Denes site is actually in Lowestoft (which WDC were also trying to sell) and I believe that references to the North Denes Site should have read the camp site on Havenbeach Marsh.
- At paragraph 31 of Mr Hutchins’ Opinion he states thus: – “If the site is subject to a charitable trust, then prima facie WDC does not own any part of the (caravan) Site; STC does.” Unfortunately nobody sought to ask the obvious question.
- The Opinion of Jonathan Gaunt (Appendix 10) was obtained by Eversheds for WDC and again his opinion was restricted to “Land Adjoining Southwold Harbour”. For reasons that are not entirely clear to me, he starts with the lease of the harbour lands to the Faseys in 1906. At para 7 Mr Gaunt states thus :- “ There is therefore no doubt that as from 1933 both the Harbour and the caravan and camp site were owned by Southwold Borough Corporation.” Agreed but one under the trust set up by the will of William Godyll and the other under the charitable undertaking set up by the 1741 Harbour Act.
- At Para 8 Mr Gaunt records thus “Since the local government re-organisation of 1974 Waveney District Council (“WDC”) have believed themselves to be the owners”. Clearly WDC did not and do not know who owns the harbour and have no documentary proof one way or the other..
- At Para 12 Mr Gaunt opines thus:- “Two points should be noted. First, even if the caravan/camp site is not part of “the harbour”, it was certainly land held with the Harbour and therefore forms part of the Harbour Undertaking. Secondly, the expression “the Harbour Undertaking” is not limited to the Harbour business but extends to all the land held therewith.” On a point of order the caravan site was part of the Harbour Undertaking and the camp site was part of Havenbeach Marsh, but save as aforesaid, agreed.
- At Para 13, Mr Gaunt refers to the powers of the Corporation to retain, sell, lease exchange or otherwise dispose of the harbour lands. The flaw in his argument is that Mr Gaunt does not appear to consider who constituted the Corporation; his assumption being, I believe, that this was WDC. Factually, I believe that it was STC as I have identified above. Mr Gaunt does not explain how WDC became the Corporation without an Act of Parliament.
- In dealing with the question of title Mr Gaunt goes back to the will of William Godyll and points out the difficulty of identifying the extent of any charitable trust arising therefrom. Whilst I must agree with this assessment, Mr Gaunt does not appear to have considered the Southwold Harbour Act of 1741 which seems to me to be quite clear and specific. I do not therefore support the conclusions proffered by Mr Gaunt in Para 29.
- At Appendix 11 is the further opinion of Mr Gaunt, sought by Eversheds on behalf of WDC. Again this opinion relates only to questions arising out of the caravan/camp site and WDC sought answers to specific questions. ”Question: Can the District Council transfer its liability for the running of the Southwold Harbour under the Harbour Order 1933 relinquishing any residual liability” Again the answer here is given on the assumption that WDC were the Corporation under the 1933 Order. The question is misplaced as STC did and do carry the liability. WDC were engaged only to manage the harbour. (Vide para 36 supra)
- A further question asked of Mr Gaunt ran thus:- “What can the District Council do with any “profit” from running the “harbour undertaking” including the caravan site?… …”. Mr Gaunt, in answering this question, goes on to explain that the revenues must be spent in accordance with Article 39 of the 1933 Order “in the order following and not otherwise”. If, after having exhausted the eight categories of expenditure set out in Article 39, there should be a surplus of profit, then, but only then, could WDC transfer such surplus to the general fund. This is exactly what I have been saying since 2003 and WDC have consistently refused to comply with the law and their own counsel’s advice. WDC continue to remove funds on the entirely spurious grounds that they are “surplus” whilst having failed to maintain the Harbour timeously, adequately or at all.
- The final question put to Mr Gaunt is revealing:-“Assuming that “harbour revenues” and capital receipts have not been applied in the manner set out in the Harbour Order 1933, how far back does Counsel consider any challenger could require the District Council to go in reviewing the accounts of the “harbour undertaking” and rectify the finances for the purposes of applying the funds correctly under the terms of the Harbour Order 1933?” Mr Gaunt is of the view that there could be no challenge to WDC’s past accounts, once they had been audited. He may well be right, but having pointed out their misapplication of Harbour funds in June 2004, WDC have continued to misapply those funds every year since in the full and certain knowledge that it was illegal for them to do so.
- In April 2006, STC sought the opinion of Robert Arnfield QC through their Solicitors, Margary & Miller (attached hereto as Appendix 12). This opinion, however, is rendered the less useful by reason of the fact that Mr Arnfield was not asked to determine ownership but to assume that the harbour undertaking was owned by WDC. Any advice so given was thus tainted at source. It attempted to answer questions on possible structures for the future administrations based upon the false assumption the harbour was owned by WDC.
- In December 2006, Mr Arnfield was asked for further advice on the future structure for the management of the caravan site which is attached hereto as Appendix 13. Whilst this opinion is included for completeness, I do not think that it adds anything to the debate on the topic of ownership as Mr Arnfield continues to refer to WDC as the current owner.
- At para 9(ii) Mr Arnfield, in considering the obligations imposed upon trustees by the requirement of maintenance and management of the harbour states thus:- My feeling is that any activity pursuant to this obligation is likely to be charitable as being for the general benefit of the community (para.38 vol.5(2) Halsbury’s Laws 2001 reissue) particularly as the repair of ports is specifically mentioned in the preamble to the Charitable Uses Act 1601 – the foundation of the present definition of charity…. …My feeling is that the obligations under the Order are likely to be regarded as charitable.”
- Mr Arnfield continues in para 9 (iv) by recommending STC to seek the guidance of the Charity Commissioners. My recommendation is that the putative Harbour Lands Trust, having taken legal advice upon all of the foregoing, persuades STC to recognise the fact that the Town Councillors are the legal Trustees of the Harbour and have an obligation to carry out the duties and responsibilities conferred upon them by the Southwold Harbour Order.
- It should not be forgotten, however, that irrespective of whether the Harbour Undertaking is a charity (and I verily believe such to be the case), STC remain the Corporation under the 1933 Order and can only be removed as the Corporation by Act of Parliament. Until such time however, STC are the legal Trustees of the Harbour undertaking and are responsible for the same. Further, as the Corporation, STC can remove WDC as the committee of management “at any time” (vide para 26 supra) should they so desire and appoint others to manage the Harbour Undertaking pursuant to Article 7 of the Act.
Graham Hay Davison F R I C S