Some much needed learning on recreational rights
Along with the Suez Crisis and the birth of rock and roll, 1956 saw the landmark decision of the Court of Appeal in Re Ellenborough Park [1956] Ch 131, which affirmed that the right to use the land of another as a pleasure garden was capable of subsisting as an easement. Now (and not before time) further judicial guidance can be found in the judgment of Latham LJ in Mulvaney v Gough [2002] 44 EG 175, which establishes, inter alia, that:
- Rights of the Ellenborough type can be acquired by prescription or implied grant, provided that they are not so extensive as to leave the servient owner without any reasonable use of his land. (A point equally applicable to car parking claims: see
PP 2002/32 .) - While the garden users cannot lay claim to any particular feature, the servient owner who wishes to carry out work on the land will have to do so in a way that will substantially maintain its character as a communal garden. Going ahead without prior consultation will, in practice, make it difficult to resist an allegation of substantial interference with the users’ rights.
