Evans v Wimbledon & Putney Commons Conservators & Ors

The Wimbledon and Putney Commons Conservators’ statutory powers must be interpreted in the context of the Wimbledon and Putney Commons Act 1871 as a whole and its environmental purposes. The Act permits an easement, access way or footpath benefiting adjoining land where it does not materially impede public enjoyment of the commons and remains consistent with the Conservators’ statutory duties and the Act’s objectives. Those duties allow a degree of practical flexibility. The Conservators may consider both the affected area and beneficial or adverse effects on the commons as a whole. Decisions involving whether roads or ways are necessary or proper are subject to established judicial review principles. A proposed agreement is not a sham unless all parties share an intention that it should create rights and obligations different from those it appears to create.

The claimant lived next to Putney Lower Common and challenged the Conservators’ proposed grant of a deed of easement to the London Borough of Wandsworth for development of an adjoining former hospital site. The proposed rights included construction and use of an access road, footpaths, drainage, barriers and works required by planning permission.

The claimant argued that the Wimbledon and Putney Commons Act 1871 prohibited the grant of those rights and that a supplementary agreement appointing the developer as the Conservators’ agent was a sham. The central issues were the proper interpretation of sections 8, 34, 35, 36 and 39 of the Act and the lawfulness of the proposed rights.

1. The claim was dismissed. The Conservators were entitled to grant the rights contained in the deed, provided satisfactory planning permission was obtained.

2. Following Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172, sections 8 and 35 of the Wimbledon and Putney Commons Act 1871 permit an easement over the commons where the grant does not interfere with public enjoyment and is consistent with the Conservators’ statutory duties and the Act’s overall objectives. The same reasoning applies to rights required to maintain and preserve the easement.

3. Section 39 must be interpreted in the same contextual manner. It permits the creation of an access way for adjoining land and authorises the Conservators to permit the adjoining owner to carry out the construction, provided the statutory qualifications are met. The power extends to modern road construction, including a tarmac surface on proper foundations.

4. The duties to keep the commons open, unenclosed and unbuilt on, and to preserve their natural aspect, are qualified by the statutory language. The Conservators may assess the effect on the particular area and on the commons as a whole. A challenge to a judgment that a road is necessary or proper lies only on established judicial review principles.

5. The proposed access, rights of way, footpaths, mounds, bollards and lifting barrier were compatible with the Act. They would not materially impede public access and were justified by the existing access arrangements, the limited affected area, the return of other areas to grass, and wider benefits to the commons.

6. Applying the principles in Snook v London & West Riding Investments Ltd [1967] 2 QB 786, the supplementary agreement was not a sham. The parties intended their legal relationship to be the one described in the agreement.