Jackson v Mulvaney

An easement may entitle neighbouring owners to use land as a communal garden for recreational and amenity purposes. A prescriptive easement need not have the precision of an express deed if the established use is capable of sensible formulation. Dominant owners’ maintenance or arrangement of the garden does not itself exclude the servient owner. The right restricts the servient owner only so far as necessary to preserve communal enjoyment. A declaration should protect the nature of the right, rather than a particular flower bed or layout.

The respondent owned a cottage adjoining land owned by the appellants. Her conveyance expressly granted a right of way, but she claimed broader rights acquired through long use and under section 62 of the Law of Property Act 1925, including cultivation, mowing and enjoyment of the land as a communal garden.

The appellants argued that the claimed use amounted to shared possession or effectively excluded them, and therefore could not constitute an easement acquired by prescription or implied grant. District Judge Ashton granted a declaration concerning the flower bed and awarded damages. HHJ Kershaw dismissed the appeal on review. The central issue before the Court of Appeal was whether the established use was capable of constituting an easement and, if so, the proper scope of the declaration.

The Court of Appeal, in a judgment delivered by Latham LJ with which Mance LJ and Simon Brown LJ agreed, allowed the appeal in part.

1. Nature of the easement. The four characteristics identified in In re Ellenborough Park [1956] 1 Ch 131 were satisfied: there were dominant and servient tenements, the right accommodated the dominant tenement, the owners were different persons, and the right was capable of forming the subject matter of a grant. A right to use land as a communal garden was capable of being an easement.
2. Prescription and section 62. An express grant is primarily a matter of construction. A claimed prescriptive or statutory right requires assessment of the evidence of use. Where use has continued for the requisite period and is capable of amounting to an easement that can be sensibly formulated, the fact that its parameters are less precise than those in a deed does not prevent a declaration.
3. Extent of the right. The established use did not exclude the appellants from all use of the land. Their ownership and use were restricted only so far as necessary to preserve the blue land as a communal garden. The fact that the dominant owners had arranged and maintained the garden did not alter that conclusion. The principle that an easement cannot effectively deprive the servient owner of ordinary use, reflected in Dyce v Hay (1852) 1 Macq 305 and Copeland v Greenhalf [1952] 1 Ch 488, did not prevent the right recognised here.
4. Declaration and relief. The declaration was too wide insofar as it protected restoration of a flower bed in a particular position. It was amended to declare a right to use the blue land as a communal garden for recreational and amenity purposes. Removing the flower bed without notice or an opportunity to recreate or relocate it substantially interfered with the right, so the award of £200 damages was upheld. A gravel driveway was not necessarily prohibited, but any works had to substantially maintain the land’s communal-garden character and avoid substantial interference. The appellants were ordered to pay 75 per cent of the respondent’s costs, summarily assessed at £20,000.

1. Court of Appeal (Civil Division). Appeal allowed in part. The declaration was amended to define the right as use of the land as a communal garden for recreational and amenity purposes.
2. Preston County Court, HHJ Kershaw. On 16 July 2001, the Circuit Judge dismissed the appeal from District Judge Ashton’s decision.
3. Preston County Court, District Judge Ashton. On 9 November 2000, the District Judge granted a declaration concerning the flower bed and awarded £200 damages.