Evans v Wimbledon And Putney Commons Conservators

Under the Wimbledon and Putney Commons Act 1871, the Conservators may grant easements over the Commons. The prohibition on disposing of any part of the Commons does not negate that power. The power must be exercised consistently with the statutory duties to preserve open space and its natural aspect, but those duties are qualified by the Act’s express exceptions. Section 39 permits roads to be made with usable metalled surfaces. Protective barriers, bollards and earth mounds may also be authorised where they protect the Commons. In deciding what is necessary or proper, the Conservators may assess the scheme’s overall impact, including net gains in open grassland, rather than treating every alteration as impermissible.

The appellant, a local resident and co-founder of the Friends of Putney Common, challenged the Conservators’ decision to grant the Council easements over parts of Putney Lower Common. The easements would provide access to a former hospital site proposed for redevelopment as a primary school and housing, and would permit associated access works.

Wyn Williams J dismissed the judicial review claim in [2013] EWHC 3411 (Admin). The appeal concerned the vires of the proposed deed under the Wimbledon and Putney Commons Act 1871. The appellant did not separately challenge the reasonableness of the Conservators’ decision. The central question was whether the Act empowered the Conservators to grant the easements and undertake the associated works.

Appeal dismissed. Lord Justice Patten gave the judgment. Lord Justices Kitchin and Rimer agreed.

1. The Court was bound by Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172. That decision established that section 8 of the Wimbledon and Putney Commons Act 1871 conferred power to grant easements over the Commons. Section 35 did not negate that power. The controlling question was whether the power could be exercised consistently with the Conservators’ duties under sections 34 and 36.

2. Section 36 was ancillary to section 34. The requirement to preserve the natural aspect and state of the Commons, so far as may be, meant so far as required under the statutory scheme. It was not an independent and absolute prohibition on works otherwise authorised by the Act. Section 34’s requirement that the Commons remain open, uninclosed and unbuilt on was qualified by the Act’s express exceptions.

3. Section 39 operated as an express exception to section 34. Its power to make roads included the creation of a metalled or otherwise usable surface. The barrier, bollards and earth mounds were intended to prevent unauthorised camping and trespass. They therefore fell within the Conservators’ duty under section 34 to protect and preserve the Commons. Section 84 supported that conclusion by authorising byelaws for excluding certain persons and preventing unauthorised vehicles.

4. The Conservators were required to exercise judgment as to what was necessary or proper. That assessment was not confined to what was strictly necessary to maintain open space. They could consider the proposal against the Act’s overall objectives and its overall impact, including the net effect on the Common as a whole. The existing access history and the restoration of substantial areas of hardstanding to grass were relevant considerations. The authorities on rights of way, Newcomen v Coulson (1887) 5 ChD 133 and Carter v Cole [2006] EWCA Civ 398, supported the significance of the rights which the proposed scheme would replace.

5. The execution of the proposed deed of easement was therefore within the Conservators’ statutory powers. The appeal was dismissed.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 940, the appeal was dismissed.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Wyn Williams J dismissed the judicial review claim in [2013] EWHC 3411 (Admin).