Residents File Claim in High Court

To stop 'unlawful private roads' being built on Putney Common

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Solicitors representing the community group (FofPC) on
22 March, 2013 filed a claim in the High Court for a Judicial Review challenging the right of Wimbledon and Putney Commons Conservators (WPCC) to allow Wandsworth Borough Council to construct private roads on Putney Common.

FofPC’s spokesman Nick Evans commented:
“ The High Court challenge to the Conservators is to ensure the protection of Putney Common from yet more encroachment by planned development of the hospital site."

"Putney Hospital had over many years increasingly invaded the common, which is protected by an Act of Parliament. Wandsworth Council’s new land grab is more of the same. The Wimbledon and Putney Commons Conservators are obliged to protect the common and are patently failing to uphold their statutory duty. It is a matter of regret that residents are now forced to go to the High Court to protect Putney Common from the unlawful development of this Metropolitan Open Land."

"This action is not about the proposed school and flats or the development of the former hospital - it is self-evident that an appropriate use for the site is urgently
needed. The redundant Putney Hospital has blighted Putney Common for over 15 years and a huge amount of taxpayer’s money has been wasted on security and
worthless planning proposals."

"The most recent planning application for a three-storey primary school (with a playground on the roof, due to the lack of space) and 24 luxury flats was quashed by
a High Court order on 8 March 2013. Residents now call on Wandsworth Council and the Conservators to work with the community to find an appropriate solution, one
which everyone can support."

He added: "It is unfortunate that Wandsworth Council did not take sufficient care to ensure they had the access rights before they spent £4.45m of ratepayer’s money on the island site, which is completely surrounded by common. The Council’s secret deal to pay the Conservators £250,000 for the rights to build the road is equally surprising, as is their inability to obtain a lawful planning permission, despite being the planning authority. Planning applications by councils to themselves as planning authority need to be scrupulously fair and transparent and this was neither.”

The Conservators

The boundaries of Wimbledon and Putney Common were clearly defined in the Wimbledon and Putney Commons Act 1871 which set up a body of eight Conservators, appointed as charitable trustees, to uphold the Act. Clear guidelines on their duties and responsibilities were set out.

The Conservators receive an income of over £1.4m a year of which c£1m is collected from
residents through council tax. The levy is paid by residents who live within three-quarters of
a mile of the commons; some 46,000 households contribute to the charity.

The 1871 Act protecting the Commons provides;
34. Commons to be kept open
The Conservators shall at all times keep the commons open, uninclosed, and unbuilt 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 lawful 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, or appropriation for any purpose of any part thereof.

35. Prohibition on alienation etc
It shall not be lawful for the Conservators, except as in this Act expressed, to
sell, lease, grant, or in any manner dispose of any part of the commons.

36. Preservation of turf etc
The Conservators shall at all times preserve, as far as may be, the natural
aspect and state of the commons, and to that end shall protect the turf, gorse,
heather, timber, and other trees, shrubs, and brushwood thereon....

The issue
The application for a Judicial Review by the High Court demonstrates that to all practical
intents a substantial area of Putney Common will cease to be common and effectively
become part of the site, ”owned” by the proposed school and flats. The private road and
coach turnaround would have a security barrier for their exclusive use, as well as further
measures such as bollards, humps and ditches. As well as the unlawful sale of the access,
FofPC are concerned the Conservators’ unlawful actions will set a precedent for further
erosion of all the commons in the future.

FofPC contend that the Conservators have no power to sell the access by granting an
easement and allow the construction of private roads on common land; they are acting
“ultra vires” (outside their statutory powers). This position was confirmed by obtaining
written opinions from two barristers, (independently of each other), both views were
unequivocal; the proposed roads are unlawful.

The background to the High Court challenge is set out in detail in the claim filed on Friday
22 March, which can be viewed on the Friends of Putney Common website. In addition the
correspondence between Richard Buxton Environmental and Planning Law, (acting for
FofPC), Gregsons (for the Conservators) and Sharpe Pritchard (for Wandsworth Borough
Council) is available.

Detailed plans of the site, hospital and unlawful access are also available on the website.

Putney Hospital opened in 1912 and closed in 1999. Wandsworth Council purchased the site
in early 2012 from Wandsworth Primary Care Trust (part of the NHS), who had wasted
millions of taxpayers’ money on the closed, semi-derelict hospital while pursuing a
development that they then abandoned.

Having purchased the site unconditionally for £4.45m, Wandsworth Council then agreed to
pay the Conservators for permission to build private roads on the common. The payments
were just £1 for the school and £249,999 for the block of 24 luxury flats. This easement
agreement was made in secret, and only released under pressure from concerned residents.
Following a cursory public consultation a planning application for a two-form entry primary
school with 420 pupils and 24 luxury flats was submitted in March 2012. Wandsworth
Council was both the applicant and the planning authority. It was riddled with multiple
errors and due to unlawful planning process the application was declared invalid in May
2012, after demands from residents.

A further application was submitted in July 2012, which despite over 600 objections from
residents over the loss of common and other concerns, was granted planning consent on 29
October 2012. This permission and an earlier Environmental Impact Assessment screening
opinion were both subsequently quashed by a High Court order earlier this month, following
a legal challenge by FofPC.

The intensity of the planned development will force the proposed private access roads for
the school and flats onto common land. The road would extend for the full length of the site
and include a large coach turnaround, all built on common land. The access is controlled by
an electronic security barrier at the entrance. In addition there will be new ditches, mounds,
paths, security bollards and street lighting, again all on common land and all for the benefit
of the development. Wandsworth Council owns 40% per cent of the site, with Putney Common providing the remaining 60% of the land included in the quashed planning application.

Residents would welcome the development of the site for an appropriate use, but feel it is
entirely right to challenge the ability of the Conservators and Wandsworth Council to use
protected common land for the construction of private roads. Over the last few months they
have campaigned for the Council, local politicians and the MP for Putney to listen to their
concerns. But to no avail.

The 1871 Act of Parliament to protect Putney Common, confirms that the Conservators:
“shall at all times keep the commons open, uninclosed, and unbuilt on...”

Friends of Putney Common (FoPC)

Map showing the hospital site in 1871

Map showing the hospital site with proposed roads paths etc

March 28, 2013