Herrmann & Anor v The Royal Borough of Kensington & Chelsea & Anor

For statutory garden rights, houses qualify only where their front or side wholly or substantially faces the recognised square, terrace, crescent or other defined area containing or associated with the garden. Access roads forming part of the wider development do not thereby form part of the square. Section 42 resolves marginal cases but does not enlarge the square by reference to historical development, architectural similarity, street names or visibility of the garden. A clear and settled administrative practice may also guide the interpretation of an old and obscure local enactment where legal certainty requires interested persons to order their affairs on that basis.

The claimants owned and occupied 37 Ovington Square, whose front door opened onto a road known as the Terrace. They sought a declaration that, as occupiers of a house said to form part of Ovington Square, they were entitled to exclusive use of its garden under section 51 of the Kensington Improvement Act 1851. They also claimed damages in nuisance against the garden committee after it refused to provide a key.

The principal issue was whether No. 37 was a house in or encompassing the Square. The court also considered the effect of the Royal Borough’s longstanding practice and, contingently, the committee’s liability for refusing access.

1. Section 51. The claim failed. “Houses in and encompassing such square” means houses whose front or side, wholly or substantially, faces the open square, half-square, circus, crescent or terrace, as popularly understood, within or associated with which the garden lies. Once the square is identified, the qualifying houses are those within it. The concept must be workable and readily recognisable to an ordinary observer.
2. Section 42. This provision resolves boundary cases where a house fronts or faces another street. It does not permit the square to be extended to access roads merely because they were developed with the square, share architectural features, provide access, or bear the square’s name.
3. The historical development of the Terrace and Ovington Gardens, the visibility of the Garden from No. 37, and the slight projection of part of No. 37 were irrelevant. No. 37 faced the Terrace, not the open Square, and its occupiers therefore had no statutory garden right.
4. The Royal Borough’s consistent practice since 1954 supported the same conclusion. Applying the principle discussed in Isle of Anglesey County Council v Welsh Ministers [2009] EWCA Civ 94, legal certainty favoured retaining a clear and settled approach to an old and obscure enactment.
5. Had the claimants established a garden right, it would have been in the nature of an easement and interference might ordinarily have been actionable in nuisance. However, the committee was not liable for nuisance because the refusal of access resulted from performing a statutory duty under the statutory scheme.