The Friends of Putney Common have failed in a High Court challenge to the grant of access rights across Putney Common. The Friends, who previously succeeded in having planning permission quashed for redevelopment of the Putney hospital site, brought an action (it’s not clear what sort of action: not, it seems, a judicial review) against the Conservators of Wimbledon and Putney Commons, and Wandsworth Borough Council as an interested party. The action claimed that the Conservators were acting outside their powers in granting an easement to the council to lay out an access way across the common to reach the hospital site. The new access would largely use an existing access (though one of uncertain provenance), and would also allow the release of other existing access ways, which would be restored to nature.
The Conservators are established under the Wimbledon and Putney Commons Act of 1871. They are one of England’s earliest statutory commons management bodies. The Conservators are partly elected and funded by local council tax payers, and partly appointed by three Secretaries of State. Their functions continue to be regulated under the 1871 Act. Oddly, none of the commons is registered as common land.
In determining the challenge, the court was bound by precedent from the Court of Appeal, Housden v Conservators of Wimbledon and Putney Commons, dating from 2008: the Conservators had “power to grant an easement over the commons for the benefit of adjoining land provided the easement does not interfere with the ability of members of the public to continue to enjoy the part of the common over which the easement is granted and provided, too, that the easement granted is consistent with the duties of the Defendant as specified in the Act and the overall objectives of the Act.”
The Friends argued that, notwithstanding that precedent, the Conservators’ powers under the 1871 Act to “To make and maintain such roads and ways as may be in their judgment necessary or proper” were confined to roads for the benefit or improvement of the common. But the court decided that the Conservators had some discretion in how they carried out their functions. “The Defendant is entitled to make a judgment about the exercise of its powers which takes account of the likely impact of a proposal upon the commons as a whole if that is appropriate as well as considering the impact upon the particular part of the commons in which the proposal is located.”
The claim was dismissed. It is understood an appeal is contemplated.
As alluded to above, this is the third court appearance for the Conservators in the last decade (the Housden case was taken through an adjudicator, the High Court and the Court of Appeal). That reflects the colossal value attached to land in the vicinity of the commons and therefore the premium placed on an easement over the common which unlocks access to such land.