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Access Route Across Common Approved

In a case which involved an interesting stand-off between planning objectives and the sacrosanctity of public access to common land, a local authority has scored a significant High Court victory in its fight to re-develop the site of a derelict hospital in the midst of West London’s Putney Common.

The former hospital, built on a site entirely surrounded by common land, had been closed since 1999 and was in a state of advanced decay. The London Borough of Wandsworth had applied to itself for planning consent to demolish the building and replace it with a block of flats and a new primary school.

The owners of the common, the Wimbledon and Putney Commons Conservators (WPCC), had, subject to the obtaining of satisfactory planning permission, granted the council a deed of easement by which the latter was permitted to build an access route across the common. The deed also conferred certain subsidiary rights to repair and maintain the route and to install a lifting arm barrier.

A local objector sought judicial review of the WPCC’s decision on the basis that the grant of such rights fell outside the ambit of its statutory powers as set out in the Wimbledon and Putney Commons Act 1871. In dismissing the challenge, however, the Court found that, on a true interpretation of the Act, Parliament had conferred a ‘degree of flexibility’ upon the WPCC in the performance of its duties.

Whilst the overall objectives of the legislation were to maintain public access to all parts of the common and to preserve its natural environment, the Court found that that did not require the WPCC to ‘defend every blade of grass come what may’. Such a finding would require an overly literal and narrow interpretation of the Act.

It was impossible to conclude that the creation of the access route would have the effect of interfering with the ability of members of the public to enjoy that very small part of the common that would be built upon. Noting that the public would be permitted to walk upon the route, the Court found that the deed of easement was consistent with the WPCC’s duties and fell within the objectives of the Act.