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 [2008] 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.

Nick Evans

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.

August 17, 2012