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Commons and rights of way

Access over common land

Statutory powers

Evans v Wimbledon & Putney Commons Conservators
[2013] EWHC 3411 (Admin)

Summary

The owners of a common were entitled under their statutory powers to grant rights of way over the common and to permit a route to be constructed on it. The permission and rights granted must not interfere with the ability of members of the public to continue to enjoy the relevant part of the common and must be consistent with the duties of the defendant and the overall objectives of the Act.

Facts

The claimant's (C) house was situated close to a Common. The defendant (O) was the registered owner of the common land. An Interested Party (DT) owned an area of land bounded on all sides by the common and had applied for consent to develop the land, by replacing the existing buildings (a former hospital) with a school and a number of flats.

The proposed development included a means of access to and from the site which, in part, crossed a small area of the common. DT had secured agreement from O to enter into a "Deed of Easement" once DT obtained satisfactory planning permission in respect of its proposed development. C contended that O was not entitled to grant a number of the rights to be conferred upon DT by the Deed of Easement.

Issues

The principal issue concerned O’s powers under statue and whether these extended to the creation of the proposed access across the common and the works involved.

Decision

The High Court found for O.

The statutory powers of O

The Court considered O’s powers under the Wimbledon and Putney Commons Act 1871 in Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172 where the Court of Appeal decided that the defendant had the power to grant an easement over the common for the benefit of adjoining land provided that the easement did not interfere with the ability of members of the public to continue to enjoy that part of the common over which the easement had been granted. The easement granted also had to be consistent with the duties of the defendant as specified in the Act and the overall objectives of the Act. The court also considered that any rights granted by O with the aim of maintaining and preserving such an easement were similarly permissible subject to the same qualifications.

Whilst s34 of the Act obliges the defendant to use all lawful means to preserve the common as open space, this duty is qualified by the phrase "except as otherwise in this Act expressed". A similar qualification is included at s36 of the Act, which obliges the defendant to preserve the natural aspect and state of the common. The court considered that the presence of these qualifying words - together with similar wording in the preamble - conferred a degree of flexibility upon the defendant when complying with its duties. Wyn Williams J said:
    "the defendant's duties do not require them to defend every blade of grass come what may in the event that it is called upon to consider the exercise of its powers in respect of a proposal which affects the natural environment of the Commons."
Basis of O’s decision

O was entitled to make a judgement about the exercise of its powers taking into account the likely impact of a proposal upon the common as a whole (if appropriate), as well as considering the impact upon the particular part of the common affected. The court noted that the Act contains phrasing to make it clear that O is required to exercise its judgment when assessing whether the criteria provided for within the Act have been met, e.g. whether the making or maintenance of a road is "necessary and proper". The court agreed with DT that it would expect any challenge to the exercise of the O’s judgment in this regard only to succeed upon well-established judicial review principles, e.g. if O’s decision could be shown as unreasonable or irrational.

Application to facts

The creation of the proposed means of access to the site (namely a road with a tarmac surface and a turning circle) would impact upon a very small area of the common since it would be built partly on land which had never been part of the common and partly on an area of the common which has already been used as an access for a number of decades and was already under tarmac. The only undisturbed area of the common to be affected would be used to accommodate the turning circle and the necessary additional land was comparatively small. The court concluded that the creation of this access would not interfere with the ability of the public to continue to enjoy the very small part of the common across which it would be built, since the public could still walk across the access as they wished.

In assessing whether the creation of the access would be consistent with the defendant's duties and the overall objectives of the 1871 Act, the court noted that:
  • The access was tied to the grant of planning permission for the development, leading to the removal of derelict and unsightly buildings adjacent to the common;
  • As a result of creating the new access, every other area which had previously been used as a means of access to the site (including the former hospital car park) will be returned to grass so as to become indistinguishable from the common over time;
  • DT had agreed to transfer some neighbouring land to O so that it will become part of the common; and
  • Less land will be subject to hard surfaces than is the case now.
It was clear that all of these elements would benefit the common as a whole.

The court was also satisfied that there was no legal impediment to the grant of the relevant rights of way to DT since it regarded these as "inextricably linked" to the creation of the access.

The court was also satisfied that s39 of the Act empowered O to create footpaths across the common and noted that this might actually facilitate access for members of the public. As to the erection of mounds, bollards etc. to prevent unauthorised vehicles from accessing the common (which might be required as a condition of the planning consent), the court felt that the relevant power could be found within the Act on the basis of improving the common “for the use thereof for purposes of health and unrestricted exercise and recreation”.


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