FoPC call to reconsider road access easements on Common agreed with Council
FoPC have demonstrated legally that granting rights to build roads on common land goes far beyond the powers granted under the 1871 Act, which protects the commons from development. If the Conservators continue with their present course FoPC will commence legal action in the High Court to ensure that the Commons are protected from the unlawful sale of the access. It is likely that the action will be through a judicial review.
Following a successful legal challenge to the planning permission granted by Wandsworth to Wandsworth for a 2FE school and 24 luxury flats on the old Putney Hospital site, Friends of Putney Common (FoPC) have challenged the Wimbledon and Putney Commons Conservators (WPCC) who are responsible for Putney Common to cancel the easement and other agreements made with the Council in February 2012.
FoPC have today published the legal exchanges between themselves and the Conservators, and these have now been made available on their website (www.friendsofputneycommon.org).
The legal opinions obtained by FoPC show clearly that the Conservators who act as Trustees of both Wimbledon Common and Putney Common under the 1871 Act on behalf of the 67,000 levy-payers living within three-quarters of a mile of the commons have gone beyond their statutory powers
On the 7th of November 2012 FoPC had provided a detailed legal opinion prepared by barrister Philip Petchey of Francis Taylor Buildings Chambers that the Conservators do not have the power to grant easements over commons land. The Conservators did not reply with a letter from their solicitor until the 11th of January 2013. The Friends have now responded with a second legal Note from their Counsel which was sent to WPCC on the 18th of January 2013. As a result of this exchange FoPC will now begin proceedings to bring the matter to a decision in the courts through a legal review unless the Conservators reconsider their position.
The Note prepared for FoPC by Mr Petchey of FCB Buildings states without equivocation the following:
* He acknowledges the further documents provided by WPCC but dismisses their legal arguments in some considerable detail.
* He states that the Housden ruling made in the Court of Appeal does not apply to the situation on Putney Common and does not grant to the Conservators a general right to grant easements in all situations such as those existing at Putney Hospital.
* He has provided an historical analysis of the gradual ‘encroachment’ of tarmaced roads and car parks on to the Common, and shows that although some have been in position since the hospital was built in 1912 they cannot be used as justification for the new access way proposed alongside the old hospital. Some of the earlier roads and car parks were made under licence from the WPCC and the NHS, but these fell away when the site was bought by Wandsworth Council, and were themselves unlawful..
* He says that the Conservators do not have powers under the 1871 Act or generally to approve what they describe as a ‘rationalisation’ of the original 1911 arrangements or later additions by agreeing to the new access arrangements.
* Nor do they have the powers to grant the right to the Council to build a new road and coach turnaround on ground that is in a natural state and not so far tarmacked, such as that proposed for the new coach turnaround.
* Providing access to the island site will therefore be problematic in any future planned development of whatever type.
* He calls into question the fact that the £250,000 ‘access fee’ being paid to the Conservators by the Council is apportioned as to £1 for the school and £249,000 for the flats. There should be no difference in the treatment whether the school is a public body or not. This would appear to be an underpayment, compared to the open market value of the land and access, which the FoPC will be raising with the Charity Commission. In any event they cannot grant an easement to provide such access for the multiple reasons demonstrated in the opinion.
* The threat of a possible Compulsory Purchase Order by Wandsworth Council is considered and dismissed as unlikely and problematic. The Conservators have said repeatedly that they were threatened by Wandsworth Council, and this is alluded to again in the Gregsons response dated 11 January 2013.
* Should the Conservators decide to withdraw from the Easement Agreement because of the unlawfulness of the arrangement, Mr Petchey makes the point that the Council cannot enforce a contract that compels a statutory body (the WPCC) to do what that body has no power to do. It is therefore the case that the statutory body will not be liable in damages in such a situation, as the unlawful agreement cannot be enforced
The above points, and many others, are discussed in some detail in the exchanges between the legal representatives of FoPC (Richard Buxton Environmental & Planning and Philip Petchey of Francis Taylor Building) and Gregsons solicitors representing the Conservators. All of these documents together with copies of the relevant agreements are now available to view and download on the FoPC website from the ‘FoPC and WPCC’ page (www.friendsofputneycommon.org).
FoPC has invited the Conservators to respond within 14 days to Mr Petchey’s latest advice which was provided to them on the 18th of January 2013, which backs up his earlier opinion from November 2012. They are called on to reconsider their actions which underpin the inappropriate development plans at Putney Hospital. This not being the case the next step will a formal
‘pre-action protocol letter’ followed by possible legal action in the High Court.
Friends of Putney Common (FoPC)
January 25, 2013