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The Court of Appeal allowed an appeal by Michael and Elizabeth Housden against the dismissal by the High Court of their application to register the benefit of a private right of way for access to their property at Southside Common,
On 12 September 2003, the Housdens sought to register an easement over the land on the basis that it had been used as an access way for more than 40 years and, accordingly, had been established by way of “prescription”.
The Conservators of Wimbledon and Putney Commons objected to the registration on the basis that under the Wimbledon and Putney Commons Act 1871, which vested the commons in the conservators, they had no power to grant the right of way claimed and, in the absence of a competent grantor, the Housdens could not have acquired the right of way by prescription.
In particular, section 35 of the 1871 Act provided that: “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.”
At the High Court, Judge Roger Kaye QC dismissed the Housdens’ appeal against the Land Registry’s refusal to register the right of way.
In the Court of Appeal, an issue arose as to whether the conservators had the power to grant the right of way under the 1871 Act.
It was agreed that if they did have such a power, the property would benefit from a right of way that could be registered.
Allowing the appeal, Mummery LJ said: “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.”
Noting the Law Commission’s review of the law of easements, Mummery LJ said: “I wish the Law Commission well in its deliberations… The experience of the courts is that bitter and unaffordable neighbour disputes sometimes stem from claims to user of a way as a means of access to, and for parking close by, a private house, and from complaints of increased and excessive user of an existing access.”
Housden and another v Conservators of Wimbledon and Putney Commons Court of Appeal (Mummery, Carnwath and Richards LJJ) 18 March 2008.
Timothy Dutton QC (instructed by Russell-Cooke) appeared for the appellants; Guy Fetherstonhaugh QC (instructed by Gregsons) appeared for the respondents.
