So how does the 1871 Act protect Hampstead Heath today?

Highgate Church from Parliament Hill (EH Dixon, 1841) - the Heath in its "natural aspect and state"

Highgate Church from Parliament Hill (EH Dixon, 1841) - the Heath in its "natural aspect and state" - Credit: EH Dixon

The purpose of the Act was always clear from its recital: “And whereas it would be of great advantage to the inhabitants of the Metropolis if the Heath were always kept unenclosed and unbuilt on in its natural aspect and state being as far as may be preserved…”

The 1871 Hampstead Heath Act did three main things.

It provided for the transfer of title to the original part of the Heath from Sir John Maryon Wilson Bt, its last private owner, to the Metropolitan Board of Works; it gave specific powers to the board to manage the Heath; and it included key provisions to ensure that the Heath was preserved in its natural state and eg not manicured into a park.

Most sections of the Act have been expressly repealed and are of historic interest only but certain key ones remain unamended and in full force: section 12 requires the Heath to be kept “open, unenclosed, and unbuilt on”; section 13 prevents the Heath, or any part of it, from being disposed of; section 14 prohibits the exploitation of its turf or trees for profit; section 15 empowers the City to “drain, level and improve” the Heath with a view to its use for “health and unrestricted exercise and recreation”, and to plant trees; section 16 (whence the Heath & Hampstead Society derives its primary charitable object) requires the Heath to be preserved in “its natural aspect and state” and to that end its turf and trees protected; and section 18 allows the erection of small “convenient or ornamental” buildings for the accommodation of Heath staff or “other public or useful purposes” (eg toilets and bothies).

The first page of the 1871 Hampstead Heath Act

The first page of the 1871 Hampstead Heath Act - Credit: Courtesy of Heath & Hampstead Society

A quaint and anachronistic section, still in force, is section 24, which states: “No [Heath] byelaw which shall extend to the prohibition of military drill on the Heath shall have any force until it has received the sanction of the Secretary of State for War.”

The 1871 Act remains the foundational piece of legislation but, alas, apparently not the overriding one.

Throughout the 20th century, various acts were passed to promote sport, recreation and entertainment on London’s, and England’s, open spaces, and many of these acts were unthinkingly made directly applicable to the Heath, but without expressly repealing, or even referring to, the 1871 Act.

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For example, the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 allows the owner/manager of an open space in London (which includes Hampstead Heath) to construct a vast array of facilities (and even permanent buildings) for public recreation and sport of all kinds.

There are other enactments seemingly in conflict with the 1871 Act, such as section 145 of the Local Government Act 1972 which authorises the promotion of every kind of entertainment on open spaces (including, for example, the construction of theatres and dance halls), and section 19 of the Local Government (Miscellaneous Provisions) Act 1976 which further provides for the creation, on England’s open spaces, of recreational facilities such as camp sites, riding schools, golf courses, dance studios and facilities for water-skiing!

The degree to which this later legislation has impliedly repealed the 1871 Act is a judicially unexplored but most intriguing and difficult question. In the recent Dams Case, Mrs Justice Lang was able to avoid the question by confining her attention to the Reservoirs Act 1975 which, she held, clearly did override the 1871 Act.

The view of Highgate from Parliament Hill on Hampstead Heath

The view from Parliament Hill - Credit: Ken Mears

Lovers of the Heath should just be very grateful that neither the City of London Corporation, nor (for the most part) the Greater London Council before it, has sought to exercise these post-1871 statutory powers in a way which would jeopardise the Heath’s overall and unique rus in urbe quality.

The only significant mark today of the exercise of these powers by the Greater London Council is the sporting facilities at the bottom of Parliament Hill.

For its part, the City accepts that key sections such as 12, 14 and 16 should remain paramount, and accordingly these sections are stated to apply to the recent City of London Corporation (Open Spaces) Act 2018, a private Act enabling the City inter alia to prevent, or at least control, exploitation of the Heath for personal profit by commercial interests such as film companies, commercial dog-walkers and professional fitness trainers.

If the matter ever does come to be tested in court, we must devoutly hope that a sympathetic judge will find a way of upholding the letter and spirit of the 1871 Act.

Marc Hutchinson is chair of The Heath and Hampstead Society.