Housden & Anor v Conservators of Wimbledon & Putney Commons

A statutory prohibition against disposing of any part of a common does not necessarily prohibit the grant of an easement over it. Under the Wimbledon & Putney Commons Act 1871, an easement is a right over the commons rather than a physical part of them. The Conservators may therefore grant an easement which is consistent with their duty to preserve the commons as open, unenclosed and unbuilt-on land.

Although not necessary to the result, the court considered itself bound by House of Lords authority that, where an easement could not lawfully have been granted, even 40 years’ use could not establish it under section 2 of the Prescription Act 1832.

The registered proprietors of a house adjoining Wimbledon Common claimed a prescriptive vehicular and pedestrian right of way over a narrow strip of the common. Their application to register the easement was dismissed by the Adjudicator to HM Land Registry. HHJ Roger Kaye QC, sitting in the Chancery Division, dismissed their first appeal.

The Court of Appeal considered whether the Conservators had power under the Wimbledon & Putney Commons Act 1871 to grant the easement. If they lacked that power, the further question was whether this prevented acquisition of the right through more than 40 years’ use under section 2 of the Prescription Act 1832.

1. Appeal allowed unanimously. Sections 8 and 35 of the Wimbledon & Putney Commons Act 1871 permitted the Conservators to grant the claimed easement. Section 8 conferred power to dispose of land, including incorporeal hereditaments such as easements. Section 35 prohibited disposal of a physical part of the commons, but did not prohibit the grant of a right over them.

2. The Act had to be read sensibly and in the context of its purpose and scheme. Its purpose was to preserve the commons as open, unenclosed and unbuilt-on land. A non-exclusive right to pass and repass over a narrow access way did not diminish the physical area of the commons, authorise enclosure or building, or prevent continued public use. Such an easement was therefore compatible with the Conservators’ conservation duties.

3. Carnwath LJ reached the same conclusion from the ordinary language of the operative provisions. An easement was not a “part of the commons”, but a right granted over them. Any easement granted by the Conservators would remain subject to their statutory objectives and control. Richards LJ agreed with both judgments.

4. The prescription issue was unnecessary to the disposition and the court’s conclusions upon it were obiter. Nevertheless, Mummery and Carnwath LJJ considered that the House of Lords’ decision in The Proprietors of the Staffordshire and Worcestershire Canal Navigation v The Proprietors of the Birmingham Canal Navigation (1866) LR 1 HL 254 bound the court. The opening words of section 2 of the Prescription Act 1832 governed both the 20-year and 40-year periods. Accordingly, if the servient owner could not lawfully grant the claimed easement, 40 years’ use could not make the right absolute and indefeasible.

5. The court distinguished the statutory right to light under section 3 of the 1832 Act. Section 3 lacked section 2’s opening reference to claims capable of being lawfully made at common law. Had the Conservators lacked power to grant the easement, the appeal would also have been dismissed on the prescription issue.

1. Court of Appeal (Civil Division): Allowed the second appeal unanimously on the construction of the Wimbledon & Putney Commons Act 1871.
2. High Court, Chancery Division: HHJ Roger Kaye QC dismissed the proprietors’ appeal on 17 May 2007, holding that the Conservators lacked power to grant the easement and that this prevented acquisition under section 2 of the Prescription Act 1832.
3. Adjudicator to HM Land Registry: Mr Edward Cousins dismissed the application to register the easement on 11 July 2006.