Garden squares – Right to use garden – Claimants purchasing house on street just off garden square – Control and management of garden governed by Kensington Improvement Act 1851 – Right to use garden confined to those properties “in or encompassing” square – Definition of “square” – Whether claimants’ property falling within square on proper construction of that term – Whether enjoying garden rights – Claim dismissed
In June 2008, the claimants purchased a residential property in Kensington and Chelsea, in respect of which the first defendants were the local authority. The property was located in a terrace just off a garden square; this consisted of a garden at the centre, surrounded by railings and accessed by a locked gate, with houses around the perimeter. The terrace and the houses around the garden square had been developed during the mid-19th century, in a similar architectural style, with the terrace providing access to the square from the surrounding streets. Since 1954, the garden had been controlled and managed under the provisions of the Kensington Improvement Act 1851. The first defendants were the successors in title to the functions of the original commissioners appointed to manage the square under that Act. The second defendant was the treasurer of the garden committee responsible for the care and management of the garden. Under section 41 of the Act, that committee was to comprise owners and lessees of houses constituting the square.
The claimants asserted that a right to access the garden attached to their property and was exercisable by them. The defendants refused to give them a key to the garden and they brought proceedings against the defendants in nuisance, contending that the refusal was an actionable interference with their right.
In support of their claim, the claimants relied on: (i) section 51 of the 1851 Act, which conferred exclusive use of the garden in a square on the occupiers of the houses “in and encompassing” such square; (ii) section 5, which extended the definition of a square to include “Crescents, Circuses, Half Squares [and] Terraces”; (iii) section 41, which provided for the maintenance of any garden “within or belonging to any Square”; and (iv) section 42, which provided that a house should be deemed to be “in” a square of the front or side of it faced or formed part of the line of that square. The claimants contended that the core concept of a square, derived from these provisions, was of a defined entity containing dwelling-houses, which could consist of a crescent, a terrace, a square in the conventional sense or some combination of those elements, together with a garden associated with it, but not necessarily in the centre of it. They argued that both the square and the terrace created to give access to it together formed the relevant “square” and that their property was “in” that square.
Held: The claim was dismissed.
A relevant consideration when construing the Act was that it had to be readily workable. Since it was of indefinite duration and gardens could be brought within it at any time, it was unlikely that the draftsman had intended its operation, including the membership of the garden committee, to depend on such matters as architectural similarity of houses, whether they had been developed at the same time or by the same party, and original street names. Bearing that consideration in mind, the reference in section 51 to houses “in and encompassing” the square, properly construed, meant those houses that had a front or side that entirely or in part faced the open square, half square, circus, crescent or terrace, as those expressions were popularly understood, within which the garden in question was located or with which it was associated. The square, whether four-sided or having some other shape by virtue of the extended definition in section 51, had to be of a kind that, with its attendant garden, the average man in the street would have no difficulty in recognising. Once the square had been identified, the houses in that square qualified for garden rights; section 42 resolved any arguments at the fringes of the square.
That approach to section 51 was supported by the established and settled practice followed by the first defendants and their predecessors when applying the Act over the years. The Act had consistently been interpreted in that way at least since 1954. That approach had been applied without evident dissent from any interested or potentially interested party. In the interests of certainty in such an obscure area of the law, where cases had rarely, if ever, come before the courts in the past, and where the first defendants’ established practice was the only guide to how the Act should be applied, it was desirable that those interested in the Act’s operation could continue to order their affairs on the basis of the approach that the first defendants had consistently followed, without a risk of that approach being overturned in favour of some other practice: Isle of Anglesey County Council v Welsh Ministers [2009] EWCA Civ 94; [2010] QB 163 applied.
On that approach, the claimants’ house did not lie “in” the relevant square, nor could it be said to “encompass” it. Since neither the front nor side of the claimants’ house faced the square in the sense intended, it followed that the claimants, as occupiers of that property, did not enjoy the garden right that they claimed.
Charles Harpum (instructed by Thring Townsend Lee & Pembertons LLP) appeared for the claimants; Ranjit Bhose (instructed by the legal department of Kensington and Chelsea Royal London Borough Council) appeared for the first defendants; Cain Omondroyd (instructed by Pemberton Greenish LLP) appeared for the second defendant.
Sally Dobson, barrister
