Legal Counsel's Opinion on Ralph Bankes's
Will
In the summer of 1996 we asked solicitor John Hobson to study
Ralph Bankes'
Will and to advise on the legality of the restrictions imposed by the
National Trust. His opinion follows.
National Council for Civil Liberties confirm what we have been saying all the way along - that the National Trust have been
trying it on and currently have no legal means of enforcing their new zone.
I am asked to advise Studland United Nudists in relation to certain actions
taken by the National Trust on its land in the Studland Bay area of Dorset.
Unfortunately I have to advise that I do not think that any of the measures
taken by the National Trust with regard to the naturists will be actionable at
law.
Facts
I am instructed that the Studland Bay area has been a popular naturist venue
for most of this century, and that until 1982 the relevant land was owned by the
Bankes family, who were sympathetic towards the naturists. When Henry John Ralph
Bankes died in August 1981, he left the residue of his estate, including the
relevant land, to the National Trust
absolutely.
Until 1995 the naturists were accustomed to using an area of land which
stretched inland some 300 or 400 yards from the beach to a line of trees running
parallel with the beach on a north-south line, although it seems they regularly
used an area larger than this.
In 1995 the National Trust erected a line of
red-topped posts running
north-south at a distance varying from 30 to 90 yards inland from the beach, the
purpose of these posts being to delineate a "naturist area".
The National Trust also erected a line of yellow-topped posts demarcating a
"Heather Walk" which visitors to the area are advised to follow if
they wish to avoid the naturist area. At some points the Heather Walk comes very
close to the newly defined naturist area, and it cuts right through the middle
of the area that the naturists were accustomed to using prior to 1995. There are
some allegations that any naturists venturing outside of the designated area are
being given
leaflets by National Trust staff which ask them to return to the
area or clothe themselves, at the risk of being asked to leave National Trust
property if they do not comply. This leaflet also highlights the further threat
of court action being taken to prevent them re-entering National Trust property
should they refuse to leave. In addition the naturists claim that National Trust
staff have removed and destroyed signs that the naturists themselves installed
to warn visitors that they were approaching a naturist area.
The National Trust claim that this action was taken in response to complaints
about the naturists from visitors to the area, and that this was done only after
consultation, the extent of which is disputed by the naturists. The naturists
wish to challenge the restrictions that the National Trust has attempted to
impose upon them in the form of a defined "naturist area".
Judicial Review
Although the National Trust is a statutory body created by the National Trust
Act 1907, and as such it is a priori subject to judicial review, I am
afraid that the possibility of judicially reviewing its actions in this case is
precluded for the very reason that (SUN) alludes to at page four of (its) review
of the events at Studland, when (it) comments that "the National Trust has no legal
power to impose such a boundary on naturist use, and no legal power to enforce
it". Although this is not strictly true, the crucial point is that the
National Trust has not utilised the powers that are available to it under the
National Trust Act 1974, section 24. What the National Trust has done is to
merely create an area beyond which it hopes naturists will not wander. No legal
powers were used to facilitate this, and as such there are no consequent legal
sanctions available to the National Trust should the naturists fail to comply.
Therefore, as the actions of the National Trust do not affect the legal
rights and duties of the naturists, there can be no recourse to review, as there
is essentially no legal act to be challenged. This is, of course, a double-edged
sword, as it also means that the naturists are under no compulsion to have any
regard to the Trust's new boundaries.
However, from a purely pragmatic point of view I would advise the naturists
to exercise caution against showing too much of a cavalier attitude to the new
boundaries. In the first instance, the Trust may be able to revoke the
naturists' licence to be on Trust property, and possibly obtain an injunction to
prevent them re-entering. As a more serious step, the Trust does have the power
to pass byelaws, in this case possibly under the National Trust Act 1970,
section 24 (f) and (n), for the regulation of conduct on Trust land, and a
breach of those byelaws would be backed up by legal sanctions. Although there
would be a power to challenge the introduction of byelaws by way of judicial
review, I would not be confident that a court would be willing to hold that the
naturists had anything more than a legitimate expectation of being consulted
over their implementation.
Breach of Statutory Duty
Under the National Trust Act 1937, section 3(c) the National Trust has a duty
to promote, inter alia, the access to places of natural interest or
beauty by the public. Although the naturists may wish to argue that by
restricting their activities, the Trust is restricting their access contrary to
section 3(c), I feel that this would be an argument without merit as section
3(c) imposes far too broad a duty for the courts to hold it to be actionable.
Terms of the Will
The property at Studland was explicitly bequeathed to the National Trust
absolutely,
and as such I can see no means of challenging the Trust's actions along this
avenue, whether or not the testator was sympathetic to the naturists' use of the
land.
Conclusion
I am of the opinion that the Studland United Nudists do not have any legal
recourse against the National Trust, for the reason that the National Trust has,
as yet, done nothing to affect the legal rights of the naturists.
John Hobson
Barrister
15 October 1996
4/5 Gray's Inn Square
Gray's Inn
London WC1R 5AY
We were unsure of the meaning of the allusion to "naturists' licence
to be on Trust property" so we wrote again to
the NCCL asking for clarification, and got the following reply:
It would appear from Mr Hobson's advice that the naturists have a licence
to be on Trust property (just as, for example, members of the public have
licence to enter a shop) and that the Trust could indeed remove such a
licence.
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