The claimants sought to register a right of way over the common by virtue of use over forty years. The defendants denied that they were able to grant an easement inder the 1871 Act, and that therefore no claim could be laid under prescription.
Held: Though the 1871 Act contained a wide provision against alienation, it was not so wide as to prevent the grant of an easement over the land, provided it was consistent with the land remaining open to general use. As prescription is based on the fiction of a grant, a landowner who could not have granted the claimed easement cannot suffer prescription.
Mummery LJ discussed the 1871 Act: ‘Discussion and conclusion on vires issue . .
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.
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.
. . 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.
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.
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.
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.
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.’
Carnwath LJ said: ‘On the 1987 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.
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.’
Mummery, Garnwath, Richards LJJ
 EWCA Civ 200,  NPC 35,  2 EGLR 107,  12 EG 97,  3 All ER 1038,  1 WLR 1172
Wimbledon & Putney Commons Act 1871, Prescription Act 1832
England and Wales
See Also – Housden and Another Housden v Conservators of Wimbledon and Putney Commons (Easements) LRA 21-Aug-2006
LRA EASEMENT – right of way – prescription – Wimbledon and Putney Commons Act 1871 ss. 8 and 35 – Prescription Act 1832, ss. 2 and 3 – true construction of the word ‘dispose’ – definition of ‘the commons’ – . .
Applied – Evans v Wimbledon and Putney Commons Conservators and Others Admn 8-Nov-2013
The claimant owned property by Putney Lower Common. He objected to a proposal to develop further neighbouring land, and in particular the grant of access over the common to the proposed development.
Held: Housden must be applied, and ‘Of . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 November 2021; Ref: scu.266211