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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Evans v Wimbledon & Putney Commons Conservators & Ors  EWHC 3411 (Admin) (08 November 2013)
Cite as:  EWHC 3411 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NICHOLAS CHARLES EVANS
|- and -
|WIMBLEDON & PUTNEY COMMONS CONSERVATORS
- and –
THE LONDON BOROUGH OF WANDSWORTH
Guy Fetherstonhaugh QC (instructed by Gregsons Solicitors) for the Defendant
Ranjit Bhose QC (instructed by Sharpe Pritchard Solicitors) for the Interested Party
Hearing date: 9 October 2013
Crown Copyright ©
Mr Justice Wyn Williams:
The rights conferred by the Deed of Easement
(i) The right to enter upon the common to construct an access to the site and footpaths; the access way is defined within the Deed as being "a particular accessway leading from the Lower Richmond Road to and along the boundary of the hospital site". The location of the access way and the footpaths are shown on a plan attached to the Deed.
(ii) The right to enter upon the common for the purposes of repairing, maintaining, cleaning, lighting or renewing the access way and the footpaths.
(iii) Rights of way over the access way to serve the school and the residential development.
(iv) Rights of entry on to the common in order to comply with conditions of any planning permission granted and the right to carry out any work on the common required by the planning permission.
(v) Rights to install in the common and maintain surface water drainage to serve the site.
(vi) The right to install and maintain a lifting arm barrier or such other form of barrier as might be agreed with the Defendant at a position which is shown upon the plan attached to the Deed.
The 1871 Act
"There shall be a body of Conservators for carrying this Act into execution, the full number of whom shall be eight, and who are hereby incorporated by the name of the Wimbledon and Putney Commons Conservators, and by that name shall be one body corporate, with perpetual succession and a common seal, and with power to take and hold and to dispose of (by grant, demise, or otherwise) land and other property (which body corporate is in this Act referred to as the Conservators)."
Section 34 provides:-
"The Conservators shall at all times keep the commons open, unenclosed, and unbuilt on, except as regards such parts thereof as are at the passing of this Act enclosed 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 enclosure or appropriation for any purpose of any part thereof."
Sections 35 and 36 limit the Defendant's powers. Section 35 provides:-
"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."
Section 36 enjoins the Defendant "at all times [to] preserve, as far as may be, the natural aspect and state of the common". Further it specifies that the Defendant shall "protect the turf, gorse, heather, timber and other trees, shrubs and brushwood thereon."
"To drain, level, and improve the common, as far only as may be in their judgment from time to time requisite for the use thereof for purposes of health and unrestricted exercise and recreation:
To make temporary enclosures for the protection of the turf or the better attainment of the object aforesaid:
To make and maintain such roads and ways as may be in their judgment necessary or proper:
To make and maintain ornamental ponds:
To plant trees and shrubs for purposes of shelter or ornament, and to make temporary enclosures for the protection thereof:
To build lodges, not exceeding 6 in number, to be used for residences of common-keepers and officers, and for no other purpose:
To repair from time to time the lodges and other buildings vested in them."
"Discussion and conclusion on vires issue
19 The social value reflected in the 1871 Act was conservation of the natural environment in an urban locality for the benefit of an expanding local population. A scheme was established "with a view to the preservation" of the commons as "open spaces of large extent, unenclosed and unbuilt on" for "great local and public advantage" by vesting them in an incorporated body of appointed and elected conservators, on whom duties were imposed and powers conferred.
20 The environmental purpose can be protected and promoted without adopting a narrow, literal interpretation of the 1871 Act. The legislative text should be read sensibly in context. In this way full effect can be given, so far as a fair and reasonable reading of the statutory language allows, to the stated purpose and the scheme devised to attain it.
22 I accept that section 35 is a very wide prohibition against alienation of the commons by the conservators. I also agree that there is a sense in which the grant of an easement over land is disposing of part of it. It is a disposal of a right over land which form the commons. There is a parcel of rights and interests in that land. However, on reading section 35 in the wider context of the Act as a whole, its apparent aim and its general scheme, I do not construe it as preventing the conservators from lawfully granting an easement over the access way.
23 First, looking at the aim of the 1871 Act broadly, the grant would not be incompatible with the conservators' overriding duty to conserve the commons as an unenclosed, unbuilt on, open space. The access way would not cease to be an open space if the claimants were granted an easement over it. The grant of an easement would not entitle them to enclose or build on the access way. The easement would not interfere with the ability of members of the public to continue to enjoy the part of the commons across which the access way runs.
24 Secondly, looking at the detail of the matter, the wording of section 35 is, in my judgment, reasonably open to an interpretation enabling the conservators to grant easements in circumstances consistent with the conservation of the commons in their existing state as an open space.
25 The question is whether the grant of the easement would be a disposal of part of the commons in breach of the prohibition in section 35. I begin by asking whether there is a possible reason for making it unlawful to grant the claimants a right of way over the access way. A grant would entitle the claimants to pass and re-pass over only a narrow strip of the commons running alongside the verge of the highway. It would not give them exclusive possession of any part of the surface of the commons or detract from the openness of the space of the access way.
26 Section 35 makes it unlawful for the conservators to "dispose" of any part of "the commons" by sale, lease, grant and so on. A number of points arise on the language in which the prohibition is expressed. It is of some significance that the restriction relates to "the commons" rather than to "land" or to an "estate, interest or right in land". The latter are the expressions apt to include rights in or over land and incorporeal hereditaments, such as a right of way: see the Interpretation Act 1978, Schedule 2 paragraph 5(b). "The commons" refer not so much to the land itself or to the rights and interests in the land, as to the physical area of open space, which is to remain unenclosed and unbuilt on. The grant of a right of way to the claimants over the small defined access way would impose a legal burden on the land, but not one that would diminish the area of the commons as a physical area of open space or result in any physical enclosure of it or building on it. In these circumstances I do not think that the conservators would be unlawfully disposing of or alienating part of the commons contrary to section 35."
"74. On the 19871 Act, I have come to the conclusion that the simplest approach is best: that is, to apply the operative provisions in accordance with their own terms. Section 8 permits the disposal of "land". "Land" includes "hereditaments….of any tenure" (Interpretation Act 1978, Schedule 2, paragraph 5(b)), and thus includes incorporeal hereditaments such as easements. Section 35 prohibits disposal of "part of the commons". In ordinary language words "part of the commons" denotes a physical concept, not a legal right. It is natural to talk of selling, leasing or granting a part of the commons. But an easement is not a part of the commons; it is a right granted over the commons. There is no corresponding definition of "commons" to stretch the meaning to include such rights. Nor the does the purpose of the Act require such an extension. Any easements granted by the conservators would have to be consistent with their overall objectives, and they have full control of the nature of any easements and the conditions under which they are granted.
75. In summary, section 8 permits the grant of easements, and section 35 does not prohibit it. On these short grounds, I would allow the appeal. I am encouraged to see that the same result follows from the more analytical approach adopted by Mummery LJ, with which I also agree."
"As regards the contention of the plaintiff that the transactions between himself, Auto Finance and defendants were a "sham" it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co. v McClure and Stoneleigh Finance Ltd v Philips), that for acts or documents to be a "sham", with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating….."
I agree with Mr Fetherstonhaugh QC and Mr Bhose QC that the supplementary agreement cannot be regarded as a "sham" within the principles formulated by Diplock LJ. The Defendant and the Interested Party intend that their legal relationship shall be that which is described in the supplementary agreement.
"Turning now to the question of footpaths which it is proposed should be constructed around the Hospital Site, I would first of all confirm that footpaths are necessary for the upkeep and preservation of the Commons, as users of the Commons, and in particular parents with young families, dog walkers and the like, prefer to use and stick to the footpaths. In this way the usage of the Commons is concentrated upon the footpaths, and the open areas are allowed to remain comparatively untouched. Furthermore, it has not been agreed, as has been suggested by the Claimant, that all footpaths in or around the Hospital Site are to be tarmaced, albeit a small number of footpaths which are subject to a great deal of pedestrian traffic have had to be tarmaced, and in respect of which there has been no objection it will be clear from the agreement with LBW that the conservators have gone out of their way to ensure that all of the proposed works to the Commons which are to be affected as a result of the development of the Hospital Site are to be carried out as sympathetically and harmoniously in line with the rest of the Commons so as to maintain the Commons in their existing state so far as is at all possible or practicable."