UK: Easements: Evans v Wimbledon & Putney Commons Conservators (Wimbledon And Putney Commons Act 1871)

Last Updated: 9 September 2014
Article by Emma Humphreys

Facts

The claimant's house was situated close to Putney Lower Common, part of a larger area of common land in Wimbledon and Putney. The defendant Conservators are the registered owners of the common land and responsible for its management. The local Council owned an area of land bounded on all sides by the common and had applied for consent to develop the land, by replacing the existing buildings (a former hospital) with a school and a number of flats.

The proposed development included a means of access to and from the site which, in part, crossed a small area of the common. The Council had secured agreement from the Conservators to enter into a "Deed of Easement" once satisfactory planning permission was obtained in respect of a proposed development. The easement would allow the Council access to construct and maintain the road and paths and to install barriers, bollards and mounds to prevent unauthorised encampments on the common. The claimant contended that the Conservators were not entitled to grant a number of the rights to be conferred upon the Council by the Deed of Easement.

Issues

The Conservators' powers under the Wimbledon and Putney Commons Act 1871 and whether these extended to allowing the creation of the proposed access across the common and the works involved with this.

First Instance

The court considered the Conservators' powers under the Wimbledon and Putney Commons Act 1871 and noted that the Court of Appeal in Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172 had explained the proper approach to the interpretation of this Act. In Housden, the Court of Appeal decided that the defendant had the power to grant an easement over the common for the benefit of adjoining land provided that the easement did not interfere with the ability of members of the public to continue to enjoy that part of the common over which the easement had been granted. The easement granted also had to be consistent with the duties of the Conservators as specified in the Act and the overall objectives of the Act.

The court considered the Conservators' powers under the Wimbledon and Putney Commons Act 1871 and noted that the Court of Appeal in Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172 had explained the proper approach to the interpretation of this Act, in particular of sections 8 and 35. In Housden, the Court of Appeal decided that the Conservators had the power to grant an easement over the common for the benefit of adjoining land provided that the easement did not interfere with the ability of members of the public to continue to enjoy that part of the common over which the easement had been granted. The easement granted also had to be consistent with the duties of the Conservators as specified in the Act and the overall objectives of the Act.

Having reviewed the decision in Housden, the court considered that any rights granted by the Conservators with the aim of maintaining and preserving such an easement - such as the right (pursuant to section 39 of the Act) to create and maintain a road/accessway - must be similarly permissible subject to the same qualifications. The court was therefore satisfied that the Conservators had the power to authorise a third party to construct a means of access for the benefit of an area of land adjoining the common provided that the access created did not interfere with the ability of the public to continue to enjoy the relevant part of the common and provided that the creation of the access was consistent with the Conservators' duties and the overall objectives of the Act.

The court noted that, whilst section 34 of the Act obliges the Conservators to use all lawful means to preserve the common as open space, this duty is qualified by the phrase "except as otherwise in this Act expressed". A similar qualification is included at section 36 of the Act, which obliges the Conservators to preserve the natural aspect and state of the common. The court considered that the presence of these qualifying words - together with similar wording in the preamble - conferred a degree of flexibility upon the defendant Conservators when complying with their duties. The court stated:

"the defendant's duties do not require them to defend every blade of grass come what may in the event that it is called upon to consider the exercise of its powers in respect of a proposal which affects the natural environment of the Commons."

The court felt that the Conservators were entitled to make a judgement about the exercise of their powers taking into account the likely impact of a proposal upon the common as a whole (if appropriate), as well as considering the impact upon the particular part of the common affected. The court noted that the Act contains phrasing to make it clear that the Conservators are required to exercise their judgment when assessing whether the criteria provided for within the Act have been met, e.g. whether the making or maintenance of a road is "necessary and proper". The court agreed with the Council that it would expect any challenge to the exercise of the Conservators' judgment in this regard only to succeed upon well-established judicial review principles, e.g. if the Conservators' decision could be shown as unreasonable or irrational.

The court noted that the creation of the proposed means of access to the site (namely a road with a tarmac surface and a turning circle) would impact upon a very small area of the common since it would be built partly on land which had never been part of the common and partly on an area of the common which has already been used as an access for a number of decades and is already under tarmac. The only undisturbed area of the common to be affected would be used to accommodate the turning circle and the necessary additional land was comparatively small. The court concluded that the creation of this access would not interfere with the ability of the public to continue to enjoy the very small part of the common across which it would be built, since the public could still walk across the access as they wished.

In assessing whether the creation of the access would be consistent with the Conservators' duties and the overall objectives of the 1871 Act, the court noted that:

  • the access was tied to the grant of planning permission for the development,
  • leading to the removal of derelict and unsightly buildings adjacent to the common;
  • as a result of creating the new access, every other area which had previously been used as a means of access to the site (including the former hospital car park) will be returned to grass so as to become indistinguishable from the common over time;
  • the Council had agreed to transfer some neighbouring land to the Conservators so that it will become part of the common; and
  • less land will be subject to hard surfaces than is the case now.

The court agreed that all of these elements will clearly benefit the common as a whole.

On the other elements of the Deed of Easement being challenged by the claimant, the court was satisfied that there was no legal impediment to the grant of the relevant rights of way to the Council since it regarded these as "inextricably linked" to the creation of the access. The court was also satisfied that section 39 of the Act empowered the Conservators to create footpaths across the common and noted that this might actually facilitate access for members of the public. As to the erection of mounds, bollards etc. to prevent unauthorised vehicles from accessing the common, the court felt that the relevant power could be found within the Act on the basis of improving the common "for the use thereof for purposes of health and unrestricted exercise and recreation".

Decision on appeal

The appeal was dismissed, following the same reasoning as at first instance. The Court confirmed that the Act was intended to lay down a scheme of arrangement for the common as open space for the foreseeable future; the Conservators were not under an unqualified duty to maintain the common as open space in its existing state.

In relation to the objection to the installation of the tarmac surface on the access strip, the Court noted the express power within section 39 of the Act to carry out works in connection with roads and footpaths and it could see no reason to find that the Conservators had the power to make a road but not to provide it with a proper surface.

Although there is no power within section 39 to permit the construction of the barrier, bollards and mounds, those measures were intended to protect the common from trespassers and the Court found that this objective was within the Conservators' duty under section 34. The Court noted that section 84 of the Act also empowers the Conservators to make byelaws to exclude and remove "gipsies, hawkers, beggars, rogues and vagabonds".

In considering whether to permit the construction of the road and to grant the rights of way, the Conservators had to decide what was necessary or proper and this required assessment of the proposals against the Act's overall objectives. In undertaking this assessment, the Court felt that the Conservators were entitled to take into account the proposals' overall impact, including the net effect on the common as a whole; it was not a case of considering only what was strictly necessary for the maintenance of the common as open space or refusing any interference with the common.

Summary

When considering the Conservators powers under the Wimbledon and Putney Commons Act 1871 to permit the creation of roads, accessways etc. over the common for the benefit of adjoining land, the same test is to apply as set out in Housden in relation to the grant of easements. Namely, the permission and rights granted must not interfere with the ability of members of the public to continue to enjoy the relevant part of the common and must be consistent with the duties of the Conservators as specified in the Act and the overall objectives of the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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