Claim solicitors for Friends of Putney Common
Agreements signed by Wandsworth Council (WBC) and Wimbledon and
Putney Commons Conservators (WPCC) to build roads on Putney Common
are unlawful, say lawyers acting for local community group ‘Friends of
Putney Common’ (FoPC).
The site, purchased by WBC for £4.4m in
February, is surrounded by the common.
Solicitors acting for the community group ‘Friends of Putney Common’ have served letters on WPCC and WBC
yesterday (13th August 2012) demonstrating that the agreements entered into by both parties to grant “access
rights” and an “accessway” over land forming part of the Common are unlawful. The agreement is ulra vires
the Conservators’ powers.
The letter, from Richard Buxton Environmental and Public Law, relies on an opinion obtained by FoPC from
barrister Clive Moys of Radcliffe Chambers, Lincoln’s Inn, London.
A spokesman for Friends of Putney Common said today: “The Conservators must immediately cancel the
unlawful agreements made in secret with Wandsworth Borough Council in February. The Council has acted
disgracefully throughout in their attempt to overdevelop this site, as over 240 objections from residents to their
plans demonstrate. They should immediately withdraw their flawed application. There are more appropriate
uses for the old Putney Hospital than a huge school and luxury flats as we have repeatedly shown.”
Legal principles from the letter sent to WBC and WPCC
The Conservators are vested with the management of Lower Common by virtue of the Wimbledon and
Putney Commons Act 1871. Their statutory powers to dispose of the land are expressly limited as per
section 35 of the Act, which states:
“It shall not be lawful for the Conservators, except in this Act expressed, to sell, lease, grant or in any
manner dispose of any part of the commons.”
Section 34 of the Act requires the Conservators at all times to keep the commons:
“...open, unenclosed and un-built on except as regards such parts thereof as are at the passing of this
Act inclosed or built on, and except as otherwise in this Act expressed, and shall by all means prevent,
resist and abate all encroachments and attempted encroachments on the commons, and protect the
commons and preserve them as open spaces, and resist all proceedings tending to the inclosure for any
purpose of any part thereof.”
In Housden v the Conservators of Wimbledon and Putney Commons  EWCA Civ 200, the Court
of Appeal referred to the above provisions and commented on the Conservators’ “overriding duty to
conserve the commons as unenclosed, un-built on open space”. On the facts of that case, the Court of
Appeal held that a grant of an easement to allow a private right to pass and re-pass over a narrow strip
of the commons running alongside the verge was not in conflict with the overriding duty because (a) it
did not entitle the grantees to ‘enclose or build’ on the commons land; (b) it would not interfere with
the ability of the public to enjoy the commons as an open space; (c) it would not give the grantees
exclusive possession of any part of the commons.
This is in stark contrast to the easement now proposed by WPCC and WBC. This falls foul of all three
points relied upon by the Court of Appeal in Housden. The rights granted include the right to pass and
re-pass along the Accessway at all times for the benefit of the school and apartments, the building of a
new road with turning circle on commons land, various rights to enter the land and install works for the
benefit of the development etc. There is also the intention to install a lifting barrier arm over the new
road, which can only be intended to exclude the public. These rights will clearly allow the grantees to
build on commons land, contribute to the exclusion of the public and arguably amount to exclusive
possession over part of the commons.
The unlawful easements were signed in February 2012 by WPCC and WBC and not made public. They are
conditional on the granting of planning permission. The Conservators need to reconsider the agreement, agree
that it purports to grant rights that the Conservators are not lawfully able to grant, and, as the agreement is still
executor, confirm to WBC that even if the Council does grant itself planning permission for the proposed
development, it will not be possible for the easement rights to be granted in the form set out in the agreement.
Richard Buxton have also highlighted to WBC significant failures in the planning application, most notably the
absence of an Environmental Impact Assessment.
In the event that planning permission is granted, FoPC intend to make an application for a Judicial Review of
both the planning permission and the unlawful easement.
Update 15th August : WPCC are currently undertaking legal advice and are unable to comment
PutneySW15.com will be publishing a response from Wandsworth Council in due course.
|Friends of Putney Common
A residents meeting to discuss the proposed redevelopment, Chaired by Justine Greening MP, is being held at 7.30pm for 8.00pm on Monday 15th of October at All Saints Church on Putney Common.
August 17, 2012