Factual and Procedural Background
The Plaintiff is the co-founder of a local residents' group aiming to protect part of the site of a former hospital ("the Site") now owned by Company A from inappropriate development. The hospital, erected in 1911 on land previously occupied by residential properties, is derelict. The Site is landlocked and accesses the public highway via roads crossing a nearby common land ("the Common"), managed by Company B. The Site was sold by Company C to Company A, conditional on Company A entering into a deed of easement with Company B, granting rights of way over parts of the Common in connection with proposed redevelopment for a primary school and housing.
The deed of easement includes rights of vehicular and pedestrian access, the construction and maintenance of access roads and footpaths, and obligations on Company A to remove certain hardstanding areas to restore grassed areas consistent with the Common's character. The existing hospital car park and several access roads will be removed or altered, with the eastern access road refurbished as the sole vehicular access. Measures such as barriers, bollards, and earth mounds are planned to prevent unlawful encampments.
The access roads were reconfigured in 1911, with extensions in 1935 and 1957, involving the Common and land formerly occupied by cottages. Neither the Site nor the access roads pre-dating 1911 were part of the Common, but the current access roads created in 1911 and later have remained part of the Common under licenses granted by Company B.
The Plaintiff sought judicial review of Company B's decision to grant the easements, challenging the vires (legal power) of Company B under the Wimbledon and Putney Commons Act 1871 ("the 1871 Act"). The challenge did not allege that the decision was unreasonable if the power existed but focused solely on whether the 1871 Act empowered Company B to grant such easements.
Legal Issues Presented
- Whether the Wimbledon and Putney Commons Act 1871 confers on Company B the power to grant easements over parts of the Common.
- Whether the grant of easements and associated works, including the construction of a metalled access road with barriers and earth mounds, is consistent with Company B’s duties under sections 34 and 36 of the 1871 Act to keep the Common open, uninclosed, unbuilt on, and to preserve its natural aspect and state.
- The proper construction and interplay of sections 8, 34, 35, 36, and 39 of the 1871 Act in relation to the disposal of parts of the Common and the making of roads and other works.
Arguments of the Parties
Appellant's Arguments
- The judge misconstrued the fundamental duties of Company B under sections 34 and 36, wrongly interpreting "as far as may be" in the preamble and s.36 as a general discretion rather than a duty to preserve the Common "as far as possible".
- The proposed access road will cease to be part of the Common in any meaningful sense and will become a private road for the school and flats, breaching the duty under s.34.
- The construction of bollards and earth mounds will alter the natural aspect and state of the Common, breaching s.36, and the judge erred in allowing these changes justified by grassing over other areas.
- The judge misunderstood the precedent in the leading case, which did not authorise the creation of tarmacked roads with barriers and earthworks, and the physical enclosure of the Common is inconsistent with the 1871 Act’s environmental purpose.
Respondent's Arguments
- Company B has the power under s.8 to grant easements, and s.35 does not prohibit such grants if they do not diminish the physical area of the Common as open space.
- The duties under ss. 34 and 36 are qualified and allow for some flexibility, including the making and maintaining of roads under s.39, provided such works are necessary or proper in their judgment.
- The barriers, bollards, and earth mounds serve a protective function consistent with the duty to preserve the Common, preventing unlawful encampments, and are supported by s.84 empowering Company B to make byelaws for exclusion of unauthorized persons.
- The overall scheme results in a net gain in open grassed area, restoring parts of the Common previously used as a car park and access roads.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172 |
Interpreted sections 8 and 35 of the 1871 Act to allow Conservators to grant easements over the Common, provided such grants do not diminish the physical area of open space. |
The court relied on this binding precedent to confirm that s.35 does not prohibit easements and that s.8 confers power to grant them, subject to duties under ss. 34 and 36. |
| Newcomen v Coulson (1887) 5 ChD 133 |
Established principles regarding rights of way and easements over land. |
Referenced to explain that the Site owner retains rights of way over pre-existing access roads and can construct ways suitable for those rights. |
| Carter v Cole [2006] EWCA Civ 398 |
Clarified the nature of rights of way and easements in land law. |
Used to support the proposition that the owner of the Site has rights to enter and construct ways over the Common consistent with existing rights. |
Court's Reasoning and Analysis
The court began by reaffirming the binding precedent set in Housden, which held that the Conservators have power under s.8 of the 1871 Act to grant easements over the Common and that s.35’s broad prohibition on disposing of parts of the Common does not extend to such easements, provided they do not reduce the Common’s physical area as open space.
The court rejected the appellant's argument that the duties under ss. 34 and 36 impose an absolute obligation to preserve the Common "as far as possible" without alteration. Instead, the court found that these duties are qualified by the language of the Act, allowing for flexibility and a balanced judgment by the Conservators regarding what is necessary or proper.
The court accepted that the making and maintaining of roads under s.39 includes the creation of metalled surfaces and that the protective measures such as barriers and earth mounds fall within the Conservators’ duty to protect the Common from unlawful encroachment, supported by s.84’s byelaw-making powers.
The court emphasized that the overall scheme results in a net gain of open grassed area, restoring parts of the Common previously covered by car parks and access roads, which weighs in favor of the Conservators' exercise of power.
The court noted that the appellant’s objections largely relate to planning concerns rather than the legal scope of the Conservators' powers, which was the sole issue before the court.
Accordingly, the court concluded that the grant of the deed of easement and associated works fall within the scope of the Conservators’ powers under the 1871 Act, specifically ss. 8, 34, 36, 39, and 84.
Holding and Implications
The court DISMISSED the appeal, holding that Company B has the legal power under the Wimbledon and Putney Commons Act 1871 to grant the proposed easements and to carry out the associated works, including the construction of a metalled access road with barriers and earth mounds.
The decision confirms that the Conservators’ powers to preserve the Common as open space are qualified by express exceptions in the Act, allowing for necessary or proper development consistent with their duties. The ruling does not establish new precedent beyond affirming the application of Housden and clarifying the scope of powers under ss. 34, 36, and 39 in this context.
The direct effect is to uphold the validity of the deed of easement and the proposed development arrangements, allowing Company A to proceed with the planned redevelopment and access arrangements.