Evans v Conservators of Wimbledon and Putney Commons

Easement – Common land – Wimbledon and Putney Commons Act 1871 – Defendant body corporate agreeing to grant rights of way and easements over common land subject to planning permission – Claimant local resident challenging defendant’s decision – Whether defendant having power to grant rights contained in deed of easement – Claim dismissed The claimant owned and lived in a house in Putney close to a common which was part of a much larger area of common land in specifically to own and manage the commons. It was the registered owner of the commons responsible for their management. The Wimbledon and Putney. The defendant was created by the Wimbledon and Putney Commons Act 1871 as a body corporate interested party was a local authority that owned an area of land bounded on all its sides by the common.  The interested party was anxious to develop the land. The development consisted of demolishing the existing buildings and replacing them with a primary school and a number of flats. The claimant and other local residents opposed the grant of planning permission for the proposed development which included a means of access to and from the site which, in part, crossed a small area of the common. By an agreement in writing dated 14 February 2012, the defendant agreed to execute a document described as a deed of easement in favour of the interested party upon receipt of written confirmation from the interested party that it had obtained a satisfactory planning permission in respect of its proposed development. The rights conferred by the deed on the interested party included: (1) the right to enter upon the common to construct an access to the site and footpaths; (ii) the right to enter upon the common for the purposes of repairing, maintaining, cleaning, lighting or renewing the access way and footpaths; (iii) rights of way over the access way to serve the school and the residential development;(iv) rights of entry on to the common in order to carry out works required to comply with conditions of any planning permissions granted; (v) rights to install in the common and maintain surface water drainage to serve the site; and (vi) the right to install and maintain a lifting arm barrier or such other form of barrier as might be agreed with the defendant. The claimant brought proceedings in the High Court asserting that the defendant was not entitled to grant those rights. Held: The claim was dismissed. The defendant had power to grant an easement over the commons for the benefit of adjoining land provided that it did not interfere with the ability of members of the public to continue to enjoy the part of the common over which the easement was granted and provided that the easement granted was consistent with the duties of the defendant as specified in the 1871 Act and its overall objectives. Rights which were granted by the defendant which had as their aim the maintaining and preserving of such an easement were also permissible, subject to the same qualifications. Further, the powers expressly conferred by section 39 of the 1871 Act had to be interpreted in the same way: Housden v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200; [2008] 2 EGLR 107; [2008] PLSCS 67; [2008] 12 EG 97 (CS) applied. Section 39 empowered the defendant to make and maintain such roads and ways as might in their judgment be necessary or proper. That provision within section 39 was not to be interpreted to mean that the construction of a means of access over the common was authorised only if the construction was necessary or proper in connection with the defendant’s duty to maintain and/or preserve the common. Accordingly, it was open to the defendant to create a means of access for the benefit of an area of land adjoining the common as provided in the deed of easement. The duties imposed on the defendant under the 1871 Act and its overall objectives were not absolute. The existence of qualifying words in sections 34 and 36 and in the preamble demonstrated that Parliament was conferring a degree of flexibility upon the defendant in relation to the manner in which it complied with its duties. Whilst those duties had as their central aim the concept of preserving the natural environment, the defendant was not required to defend every blade of grass in the event that it had to exercise its powers in respect of a proposal which affected the natural environment of the commons. The defendant was entitled to make a judgment about the exercise of its powers which took account of the likely impact of a proposal upon the commons as a whole if that was appropriate as well as considering the impact upon the particular part of the commons in which the proposal was located. In the present case, the defendant had to consider not only the impact of the grant of the rights contained in the deed of easement upon the parts of the common over which physical alteration would take place and their immediate environment but also whether the grant of such rights would result in beneficial or negative effects on the commons as a whole either directly or indirectly. In all the circumstances, the defendant was entitled to grant the interested party the various rights contained within the deed of easement provided that the interested party obtained a satisfactory planning permission. Philip Petchey (instructed by Richard Buxton Solicitors) appeared for the claimant; Guy Fetherstonhaugh QC (instructed by Gregsons Solicitors) appeared for the defendants; Ranjit Bhose QC (instructed by Sharpe Pritchard Solicitors) appeared for the interested party. Eileen O’Grady, barrister