The legal challenge against Lambeth’s action is detailed and comprehensive.
Here is the Solicitors letter we sent on 20 August 2021.
Below is a summary of the main points…
What is the legal status of Clapham Common?
Clapham Common is a large area (approx. 200 acres) of common land situated in the London Borough of Lambeth and the London Borough of Wandsworth. It was formerly waste land of the manors of Clapham and Battersea. It was originally purchased from its manorial owners (that is, the Lords of the Manor) by the Metropolitan Board of Works in around the 1860s. On local government re-organisation, ownership of Clapham Common passed to the London County Council and subsequently to the Greater London Council. On the abolition of the Greater London Council, legal ownership of Clapham Common was transferred to Lambeth Council. The Wandsworth/Lambeth borough boundary runs through the Common but Clapham Common is wholly owned and managed by Lambeth Council.
Clapham Common is a metropolitan common within the meaning of the Metropolitan Commons Act 1866. By a scheme made under that Act (as amended by the Metropolitan Commons Act 1869) and confirmed by the Metropolitan Commons Supplemental Act 1877, the lands comprising Clapham Common:
… shall be and hereby dedicated to and for the use and recreation of the public as open and unenclosed space for ever.
What powers does Lambeth Council have to hold events on Clapham Common?
By Article 7 (1) (b) of the Greater London Parks and Open Spaces Order 1967 (the Order forms the Schedule to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967) Lambeth Council has the power to provide on Clapham Common:
… amusement fairs and entertainments including bands of music, concerts, dramatic performances, cinematograph exhibitions and pageants.
By Article 7 (1) (f) of the 1967 Order, Lambeth Council has the power on Clapham Common to:
… erect and maintain for or in connection with any purpose relating to the open space such buildings or structures as they consider necessary or desirable …
By Article 12 (1) of the 1967 Order:
In the exercise of powers conferred by articles 7 and 8 the local authority shall not, without the consent of the Minister (which consent the Minister may give in such cases as he thinks fit), erect, or permit to be erected any building or other structure on…any part of a common.
The approach of The Secretary of State for the Environment to the grant of consent is set out in Common Land Guidance Note 2d:
When deciding an application under Article 12 we will have regard to the criteria in section 39 of the 2006 Act:-
(a) the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it);
(b) the interests of the neighbourhood;
(c) the public interest, which includes the public interest in nature conservation, the conservation of the landscape, the protection of public rights of access, and the protection of archaeological remains and features of historic interest;
(d) any other matter considered to be relevant.
Has Lambeth Council complied with the Acts of Parliament governing Clapham Common?
On 23 April 2021, Lambeth Council applied to the DEFRA Casework Team (Common Land) that sits within the Planning Inspectorate for consent to erect structures on Clapham Common. The common land casework team are the civil servants that draft the recommendation to the Secretary of State for the Environment to either grant consent or to refuse consent.
Lambeth Council’s application was advertised in accordance with the Works on Common Land etc (Procedure) (England) Regulations 2007. It attracted over 470 objections from local people and local groups, including from the Friends of Clapham Common and the Clapham Society.
The common land casework team invited the comments of Lambeth Council on the objections. The common land casework team has not yet made any recommendation to the Secretary of State for the Environment as to how the application should be determined (i.e. by way of written representations or following a public inquiry). The common land casework team confirmed on 6 August 2021 that Lambeth Council’s application for consent to erect structures on Clapham Common would not be determined before the events on Clapham Common were due to start being installed on 16 August 2021.
So Lambeth Council has applied for consent but has not been given consent. What does this mean?
The consequence of the fact that Lambeth Council’s application for consent to erect structures on common land has still not been approved by the Secretary of State for the Environment means that Lambeth Council has no power to allow the structures to be erected. Lambeth Council is acting ultra vires. Also, the erection of such structures prevents access to the Common by the public for its recreation contrary to the scheme under the Metropolitan Commons Act 1866.
What justification does Lambeth Council give for allowing these structures to be illegally erected on Clapham Common?
Lambeth Council states that:
(1) There is no reason to cancel the events and Lambeth Council will not take steps to do so.
(2) Lambeth Council thinks it will get retrospective consent.
(2) The events are in the interests of the neighbourhood in accordance with the Secretary of State’s guidance for the grant of consent.
(3) The events will generate a substantial revenue receipt for Lambeth.
What do we say to this?
(1)The absence of consent is obviously a reason for cancelling the event. The “Officer Delegated Decision Report 16 August 2021” which was published on or around 9 August 2021 recommends to Councillors that the events should go ahead. This report is defective because under the heading ‘legal and democracy’ it does not mention at all the fact that consent from the Secretary of State is needed, that Lambeth Council has applied for consent and that consent has not been given. This is extraordinary.
(2)There is no case decided by the Court holding that the Secretary of State has power to grant consent retrospectively under this legislation. For a Court to rule that consent may be granted for temporary (but hugely damaging) structures runs counter to the intention of the legislation which is to protect common land.
(3) The exercise of determining whether works are or are not in the interests of the neighbourhood is one for the Secretary of State for the Environment and not for anyone else; still less for the determination of the party who proposes to carry out the works and is seeking consent for them.
(4) Whether or not the events generate revenue for Lambeth Council is irrelevant both because the issue is the absence of the consent of the Secretary of State and also because it is not possible to “buy” the consent of the Secretary of State by reference to extraneous money benefits. Parliament transferred ownership of Clapham Common to Lambeth Council not for the benefit of the council tax payers of Lambeth Council but for everyone, for the Commoners. The Secretary of State may consider that money received by way of licence fees in respect of events staged on the Common may be relevant to an assessment of benefit to the neighbourhood if applied to the maintenance and improvement of Clapham Common itself; but not if applied to pay for unrelated projects in Lambeth (and not for the general benefit).