Trustees of common land have defeated a challenge that cast doubt on their ability to grant rights to construct a roadway across the common.

The litigation in R (on the application of Evans) v Conservators of Wimbledon and Putney Commons [2014] EWCA Civ 940; [2014] PLSCS 206 provides us with a perfect example of the law in action. It reminds us that the common law accumulates on a case-by-case basis, and therefore develops by degrees, and provides developers and their legal advisers with a salutary reminder that opposition to development comes in many different shapes and guises. The case concerned the site of a derelict hospital in Putney, which was close to a large area of common land established under the Wimbledon and Putney Commons Act 1871. The landowner entered into a contract to sell the site to a local authority, which wanted to use the land for housing and for the provision of a school. The contract for sale was conditional on obtaining a deed of easement from the trustees of the common, which would enable the local authority to construct, maintain and use an access road and turning circle on part of the common. One of the Friends of Putney Common, who lived nearby, challenged the trustees’ decision to enter into the deed of easement. He accepted that the trustees could grant rights of way across the common without contravening their duty to preserve it, as a result of the decision in Housden v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200; [2008] PLSCS 67. However, he contrasted the rights granted in that case with the rights that the trustees were proposing to grant here, which would enable the local authority to tarmac the surface of the access way and to construct barriers and other deterrents against unauthorised parking along it, thereby excluding the public from it and turning it into a private access road for the new development. The 1871 Act required the trustees, “except as otherwise in this Act expressed”, to keep the common open, unenclosed, and unbuilt on, and to “preserve, as far as may be, the natural aspect and state of the common”. However, the trustees also had the power, among other things, to “make and maintain such roads and ways as may be in their judgment necessary or proper”. The Court of Appeal found it hard to understand why the trustees should be empowered to make a road, but not to provide a proper, usable surface. It noted that this power, combined with other provisions in the 1871 Act, made it clear that the trustees’ duty to preserve the common in its existing state was not unqualified. Consequently, the court concluded that the trustees did have the power to grant the easements that they were proposing to confer on the local authority, and that the tarmacing of the road and erection of barriers would not fall foul of the 1871 Act, if the trustees considered the proposals to be necessary or proper. The court did not deal with any circumstances that were extraneous to its decision, so we do not know if and when the conditional contract was due to expire. However, the litigation illustrates the lengths to which objectors will go to prevent or delay development. Therefore, developers would be well-advised to ensure that long stop dates in options and conditional contracts allow sufficient time to dispose of every possible challenge to their proposals. Allyson Colby is a property law consultant