Most minor statutory bodies might hope to stay out of the courts for a lifetime, or at least, for the term of their existence, which may well be shorter. The Conservators of Wimbledon and Putney Commons have however appeared four times in the higher courts in the last few years. First, they eventually lost a case brought by a local resident, Michael Housden, who sought and won a declaration from the Court of Appeal (having failed before the Adjudicator to HM Land Registry and in the High Court) that he was entitled to a right of way across Wimbledon common to reach his home in Southside Common. (The Adjudicator was no less than Edward Cousins, the editor of Gadsden on Commons and Greens, but his finding, and that of Judge Roger Kaye QC in the High Court, were overturned on appeal.)

More recently the Friends of Putney Common have brought an action in the High Court and subsequently the Court of Appeal, to challenge the decision of the Conservators that new easements could be granted by them over Putney Common in favour of Wandsworth Borough Council to facilitate access to a development on the old Putney hospital site adjacent to the common. You can read a brief background and a report of the unsuccessful High Court challenge in an earlier blog. The Friends therefore appealed to the Court of Appeal. Nicholas Evans is a co-founder of the Friends of Putney Common, and the action was brought in his name, in what (despite my bafflement in my blog of the earlier case) turns out to be a judicial review. Oddly, the case is not listed conventionally as R (Evans) v Conservators, although that is probably the fault of the parties rather than the court. The council was an interested party in the case.

Both Housden and Evans concern the power of the Conservators to grant an easement (i.e. a private right of way, in this case over part of the common, in favour of the owner of a neighbouring piece of land). Ironically, the Conservators first went into battle because Mr Housden claimed he had acquired an easement across the common through long use, and wanted to have it recorded on his Land Registry title — this is how most access ways are acquired across common land, by a mechanism approved by the House of Lords in 2004 (Bakewell Management Ltd v Brandwood and others). The Conservators said that was impossible in relation to Wimbledon and Putney commons, because the commons are protected under a local Act, the Wimbledon and Putney Commons Act 1871, which forbad the Conservators “to sell, lease, grant, or in any manner dispose of any part of the commons”, and granting an easement was just such a prohibited disposal. However, the Court of Appeal found for Mr Housden, noting that the grant of an easement was not a disposal of a ‘part’ of the commons, but simply enabling a right of way over the common. Indeed, the right of way had been in long use, and there was no suggestion that finding for Mr Housden would allow him to upgrade the track by putting down a tarred surface. The court noted that “the Access Way would not cease to be an open space” (para.23), and inferring a power for the Conservators to grant such an easement was “consistent with the conservation of the commons” (para.24).

Having lost that case, the Conservators did not go away empty handed (though no doubt the costs were colossal). They were now cognisant that they possessed a very potent power to grant easements to access neighbouring property which might otherwise be landlocked — in effect, they might control the only means of access to development sites in a hugely valuable part of London. Such was the case with the old Putney hospital site.

The site was formerly served by a hodgepodge of access ways across the common, and indeed some land used for car parking was on the common itself. But the existing access ways were unsatisfactory, and the Conservators agreed to grant a new means of access, to be tarred, and protected by bollards, mounds and a barrier, while the existing access ways would be ‘erased’. The Friends of Putney said that the Conservators were now exceeding the powers involuntarily won in Housden, because the new means of access would be an intrusion on the common, and the Conservators entirely lacked powers to allow the establishment of the bollards, mounds and barrier. In effect, the Conservators were permitting the inclosure of this part of the common, contrary to the purpose of the 1871 Act. Indeed, all parties appeared to accept that the new road would amount to inclosure.

The Court of Appeal was unsympathetic. It noted that Housden had decided that the grant of an easement was not prohibited by the 1871 Act, and the Conservators therefore had only to act in accordance with their general statutory objectives to “keep the commons open, uninclosed, and unbuilt on…except as otherwise in this Act expressed”. The Act conferred a specific power on the Conservators to “make and maintain such roads and ways as may be in their judgment necessary or proper”, and the court concluded that, even if the means of access to the Putney hospital site amounted to inclosure, it was a permitted derogation under the power to make roads.

Despite the absence of any statutory power conferred on the Conservators to erect bollards, mounds and barriers, the court noted that the Conservators were under a duty to use all lawful means to protect the commons: indeed, the byelaws prohibited unauthorised access onto the common with vehicles (the irony that the judgment would facilitate driving across the common apparently escaped the court). So the Conservators could erect the bollards etc. in furtherance of its general duty.

The court rejected the obvious view that the Conservators’ power to “make and maintain such roads and ways as may be in their judgment necessary or proper” was confined to such roads and ways as might be ‘necessary or proper’ for the enjoyment of the commons. After all, the power appears among a number of other powers (to ‘improve’ the common, to plant trees for ornament, to build lodges for common-keepers) all the rest of which are clearly orientated towards the Conservators’ functions to protect the commons and preserve them as open spaces. Instead, the court concluded that the Conservators were entitled to look at the overall result of the deal with the council, which would see other misused areas restored to open space, and the avoidance of any revival of the original right of way to the site. If that result was consistent with the Conservators’ functions, then it was lawful.

Comment: Even if one accepts the principle apparently (if not obviously) established by Housden that the Conservators have a power to grant any easement over the common which is consistent (taken as a whole) with their functions, it’s hard to see that their power to “make and maintain roads” is one which has any purpose other than to create such roads to enable the public to enjoy the common, and the Conservators to maintain it. By way of contemporary comparison, s.7(5) of the Commons Act 1876 (enacted five years after the 1871 Act) enabled orders for the regulation of commons to contain provision “for the benefit of the neighbourhood”: “That carriage roads, bridle paths, and footpaths, over such common are to be set out in such directions as may appear most commodious”, which was clearly intended to be relevant only to ways for public enjoyment or need.

And it seems likely that the Conservators intend neither to make nor maintain the access road to the hospital site: that will presumably be done by the council. Which makes it all the harder to understand how the statutory power is relevant.

There is nothing in the Act about installing bollards, mounds and barriers. The court thought the Conservators could put these in so as to protect the common. But that raises the paradox that none of these things would be necessary, and the common would not need protecting in this particular instance, if the easement were not granted in the first place. Besides, if the Conservators have unrestricted powers to protect and maintain the common, what is the point of the specific powers conferred for those purposes? It does seem that this constraint was swept aside by the court as a mere trifle which rather got in the way.

The court appeared to be influenced by the vicarious nature of the challenge, explicitly noting at the end of para.28 that the Friends were opposed to the redevelopment of the Putney hospital site, and implying that this action were only a means to an end, rather than a concern for the conservation of the common.

But the reported £350,000 value of the easement is a strong incentive to go to court — even if the core of the Conservators’ case is a power to grant an easement which they went to court to oppose just a few years ago. It is understood that the Friends are contemplating an appeal to the Supreme Court, though it seems unlikely that the Court would wish to review a case with strictly local parameters.

Finally, it’s worth noting that Putney common was not registered as common land under the Commons Registration Act 1965. That means that, whereas the consent of the Secretary of State is required for works on registered and certain other common land (including laying out sealed roads) under s.38 of the Commons Act 2006, including the vast majority of London commons managed under schemes made under the Metropolitan Commons Act 1866, it is not needed for Wandsworth and Putney commons. However, even if the commons had been registered, it is likely that the specific power of the Conservators to make roads across the commons would have waived the requirement for consent, by virtue of subs.(6)(a) of s.38 — provided of course that it is the Conservators who are laying out the road.