R (on the application of Evans) v Conservators of Wimbledon and Putney Commons

Easements – Common land – Wimbledon and Putney Commons Act 1871 – Respondent body created by 1871 Act to own and manage commons – Interested party proposing development on site bounded on all sides by common – Respondent agreeing to grant rights of way and other easements over common for benefit of proposed development – Appellant local resident challenging grant – Whether respondent having power under 1871 Act to grant such rights – Appeal dismissed The claimant lived in Putney close to a large area of common land that was owned and managed by the respondent, a body corporate created for that purpose under the Wimbledon and Putney Commons Act 1871. The interested party, a local authority, owned a derelict former hospital site which was bounded on all sides by the common. They sought planning permission to develop that site for a new primary school and flats, with a means of access across a small area of the common. By an agreement in writing dated February 2012, the respondent agreed that, subject to the grant of planning permission for the development, it would execute a deed of easement in favour of the interested party granting various rights over the common for the purpose of that development. Planning permission was granted in December 2013. The promised rights included: (i) a right to enter on the common to construct an access to the development site and footpaths; (ii) the right to enter on 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 onto 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 respondent. The claimant was unsuccessful in a judicial review challenge to the legality of the respondent’s decision to enter into the agreement. The  judge held that the prohibition in section 35 of the 1871 Act on disposing of “any part of the commons” either had no application to the grant of an easement over part of the common or permitted such a grant if it did not diminish the physical area of the common as open space. He held that the power in section 39 to “make and maintain such roads and ways as may be in their judgment necessary or proper” should be construed in the same way and was not restricted to cases where the construction of the roads was necessary and proper for the performance of the respondent’s section 34 duty to maintain and preserve the commons as open space: see [2013] EWHC 3411 (Admin); [2013] PLSCS 269. The appellant appealed. Held: The appeal was dismissed. The 1871 Act was intended to lay down a scheme of arrangement for the commons as open space for the foreseeable future. The respondent was not intended to be placed under an unqualified duty to maintain the common as open space in its existing state. Although the exceptions were limited in nature, these were expressly provided for in the Act and the terms of the excepted provisions determined the scope of the relevant powers. The power to dispose of land and property under section 8 of the 1871 Act conferred on the respondent the power to grant an easement over a common in its ownership. Any limitations on that power were to be found in the need for the respondent to act consistently with its overall objectives, namely its duties under sections 34 and 36 to preserve the commons as open space in its natural state, rather than in section 35, which had no application to the grant of easements. Even if section 35 did extend to the grant of easements, its prohibition on disposing of any part of the commons was expressly qualified by the words “except as in this Act expressed” and could not be read as negating the express power to dispose of land under section 8. Accordingly, the central issue was whether the section 8 power could be exercised consistently with the respondent’s obligations under sections 34 and 36: Housden v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200; [2008] 1 WLR 1172; [2008] 2 EGLR 107 applied. Section 36 was specifically concerned with the preservation of the natural state of the commons and, in particular, with the grassland, gorse, heath and trees that grew there. Any encroachment or building on the common would necessarily interfere with the existing landscape. However, it essentially ancillary to section 34 and, so far as the exercise of the respondent’s power to build or inclose parts of the common was not precluded by section 34, it was not excluded by the provisions of section 36. The section 36 duty required the respondent to preserve the natural state of the common “as far as may be”; the natural construction of those words was “as far as required under the Act”. Section 36 did not provide an independent, absolute and unrelated duty, which would have the effect of making the scheme under section 34 largely irrelevant. Section 34 required the respondent to keep the common “open, uninclosed, and unbuilt on… except as otherwise in this Act expressed”. The exception in section 34 referred simply to what the other relevant provisions of the Act permitted and did not add any further inhibition on how they could be exercised. The principal express provision that permitted inclosures, the making of roads and buildings was section 39. Section 39 therefore operated as an express and recognised exception to section 34 according to its own terms. It followed from the above that the respondent had the power under section 8 to grant the promised easements and that the laying of tarmac on the access road and the construction of the proposed barrier, mounds and bollards did not fall foul of the provisions of either section 34 or section 36 if they were otherwise authorised by the express provisions of the 1871 Act. In the case of section 39, that meant that the respondent had to consider them to be either necessary or proper. In exercising its judgment on that issue, the respondent would probably need to consider the proposal against the background of the overall objectives of the 1871 Act. However, that was not a narrowly-focused exercise in which the only relevant criteria were what was strictly necessary for the maintenance of the common as open space, or in which any interference with the existing state of the common had to be treated as impermissible. In making a judgment as to what was proper, the respondent was entitled to take into account, as it had done, the overall impact of the proposal, including the net effect on the common of the scheme as a whole. The grounds of appeal did not challenge the reasonableness of the respondent’s decision but only the existence of the power to make it. Those grounds were not made out since the execution of the proposed deed of easement fell within the scope of the respondent’s powers. Robert McCracken QC and Philip Petchey (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Guy Fetherstonhaugh QC (instructed by Gregsons Solicitors) appeared for the respondent; Ranjt Bhose QC (instructed by Sharpe Pritchard) appeared for the interested party. Sally Dobson, barrister