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Cite as: [2003] 1 WLR 360, [2003] 4 All ER 83, [2003] P & CR 16, [2002] EWCA Civ 1078, [2002] 44 EG 175

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    Neutral Citation Number: [2002] EWCA Civ 1078
    Case no: B2/2001/1962

    (District Judge Ashton)

    Royal Courts of Justice
    London WC2A 2LL
    24 July 2002

    B e f o r e :

    Vice President of the Court of Appeal, Civil Division


    EMILY JACKSONDefendants/Appellants


    (As handed down by the Court)


    - - - - - - - - - - -- - - - - - - - - - ----

    Crown Copyright ©

      Lord Justice Latham:

    1. This appeal is concerned with an easement to which the respondent claims that she is entitled over land adjacent to her cottage, 7, East View, Galgate, Lancashire. Her cottage is one of a group of cottages which forms a block shaped like a reversed “L”, with the west aspect of the “L” facing Chapel Street, and the southern side being bordered by a lane running east to west at right angles from Chapel Street. The respondent’s property is the eastern most cottage. It lies on the junction between the lane and a strip of land running along the east side of her property of at least carriageway width which emerges onto open land on the north. Behind the cottages, within the confines of the inverted “L”, and emerging onto that strip of land is an area which forms the back yard of the cottages. The dispute is over the extent of the respondent’s rights to use the back yard and the strip of land which are owned by the appellants. I shall refer to the back yard and the strip of land together as the “blue land”.
    2. The cottages and the blue land were at one time owned by the appellants’ predecessor in title, Joseph Holmes, who died on the 5th December 1950. The cottages were gradually sold off. When the respondent’s cottage was sold in 1970, the conveyance included:
    3. “.... a right of way at all time and for all purposes in common with the vendors and all persons having the like right over and above the open yard adjoining the said premises and coloured blue on the said plan (“the blue land”).”
    4. The respondent, however, claims that the right appurtenant to her cottage is more extensive by reason of the use of the blue land that has been made over the years. She had tended a garden on the strip of land consisting of a grassed area and a flower bed abutting the wall along the east side of the strip. On the 11th April 1996, she returned to her cottage to find that a JCB had been used to remove the flower bed and part of the grassed surface of that area. The appellants were clearly seeking to exercise what they believed were their rights over that strip of land in order to create vehicular access to land both to the north and to the east. They were intending to gravel its surface, and had deposited gravel for that purpose. From the relevant dimensions set out on a plan with which we have been provided they clearly considered that they would be unable to obtain sufficient width for vehicular access unless the flower bed was removed, particularly as the respondent’s back door opens outwards onto the strip of land.
    5. The respondent commenced proceedings claiming a declaration that she was entitled to “freehold rights” over the blue land “for the purposes of cultivating, mowing and otherwise enjoying the same and hanging washing” being a right acquired by use and passing as part of the title under s. 62 of the Law of Property Act 1925. The appellants contended that the right claimed could not exist as an easement as it was so extensive that it amounted to nothing less than the right to shared possession of the blue land, so that, accordingly, the respondent was only entitled to the express grant of the right of way recorded in the conveyance to which I have referred. This argument was later modified to assert that the right claimed effectively excluded the appellants from any use of the land, and was for that reason incapable of amounting to an easement.
    6. The action was heard as a fast track case by District Judge Ashton in the first instance. He heard the evidence and concluded that the use claimed was a long established use and was capable of amounting to an easement. On the 9th November 2000, he granted a declaration that the respondent was entitled to reinstate and maintain the flower bed in question. The appellants appealed. The appeal was heard by HHJ Kershaw as a review of the District Judge’s decision; and he dismissed the appeal on the 16th July 2001. He held that the facts found by the District Judge were sufficient to found an easement known to law. The question before us is whether he was right.
    7. The relevant findings of fact were set out in the judgment of District Judge Ashton; it is necessary to set these out in some detail. He said:
    8. “This case concerns the environment of a cottage known as 7, East View, Galgate, Lancashire, owned and occupied by the claimant. It is one of a group of cottages situated in East View and Chapel Street with an enclosed back yard. Most if not all of these cottages have been provided with modern amenities but they were originally served by water closets in the yard and such buildings still exist although now used for other purposes if at all. The cottages were acquired by Joseph Holmes in 1932 and occupied by tenants, but following his death in 1950 the trustees of the estate have progressively sold them and some have changed hands several times since. Although rights were not always expressed in the same way, the policy of the trustees was (when possible) to sell just the cottages with rights over the yard and to retain ownership of the water closets. Thus when No. 7 East View (the claimant’s cottage) was sold off to Mrs Plahatu in 1970 the conveyance merely included
      “a right of way at all times for all purposes in common with the vendors or persons having the like right over and upon the open yard adjoining the said premises coloured blue on the said plans”.
      Yet in 1959 when No 1 East View was sold the conveyance had included, in addition to express water supply and coal bunker rights:
      “... A right of way and of use for drying purposes, over and in the said yard .... upon payment of a proportionate part of the expense of repairing and maintaining the same.”
      And there was the standard agreement and declaration that all easements and quasi easements should remain as they existed under one ownership. In 1974 when No 9 Chapel Street was sold such provisions were reduced to:
      “The joint use of the yard or ground to the rear of the said property coloured blue on the said plan.”
      One may wonder whether any distinction was intended, but in practice none was adopted by the residents and development of the yard by the owners would be effectively prevented by the terms of the conveyance of 1950 (of which there were several). The many witness statements from existing and former residents testify not only to a “communal” yard on “the blue land” but also to happy relationships between all residents. I am satisfied that over the decades, and certainly predating these sales, the entirety of the yard was used by the residents as amenity and garden land on a shared basis. That would have been the intention when the cottages were built in the 19th Century and the way it was occupied when in common ownership. Nothing appears to have been done when the cottages were sold off to prevent this long established regime from continuing and no distinction appears to have been made as regards any part of the land invariably shown coloured blue on these deeds.
      The evidence shows certain “ground rules” or understandings grew out of the need to avoid anarchy and this included provision of washing lines, space for dustbins and allocation of small flower beds so that the yard would resemble a domestic garden and be more attractive as an amenity enjoyed by all. To the extent the late Joseph Holmes and subsequently the trustees continued to own some of these properties they must have known and indeed acquiesced in what was going on and benefited from the higher prices that would be obtained when they came to sell individual properties. Whilst the yard regime was not spelt out in conveyances it was recounted to prospective purchases and I am satisfied that there was no systematic attempt by either the Holmes family to inform initial and successive owners that all this was done with their permission which could be revoked at any time on a whim. Purchases were inclined to take the situation on trust and not to insist that it was spelt out in the deeds.
      In so far as pieces of land were allocated for cultivation adjacent to each cottage this was part of the overall scheme. Acceptance by all would be essential because these small flower beds inevitably obstructed the mutual rights of way over the yard. Whilst each registered resident could say: “That is my garden”, this would not be a claim to legal ownership but allocation as part of the overall scheme of the communal garden. During some period one occupier may have less time or be uninterested in the chore of garden maintenance and I have no doubt that an informal arrangement would be made with someone else for the upkeep of the allocated land. But generally each flower bed was regarded as being attributed to a particular cottage. The unallocated part of the yard was grassed over and there is evidence that people took it in turns to cut this and keep it tidy. There is an abundance of evidence, collected by the claimant in the form of both statements and photographs, of the enjoyment of the communal yard – now a garden – by the residents over many years. There is also evidence of steps being taken by certain residents to question anyone who “trespassed” there.
      I am satisfied that these communal rights have been acquired by prescription over the “blue land” by the claimant and those property owners to whom express rights as joint user were not granted. This long standing basis of user and occupation with the cottages does not depend upon the express consent of the Holmes family as they now seek to allege. It is the de facto situation based upon more than 50 years history.
      The evidence of an already established communal yard is uncontested, not contestable now by reason of consent and not negatived by any express provision in that conveyance” (the respondent’s conveyance) “At the very least this claimant will enjoy rights over the blue land equivalent to those expressed in the 1974 conveyance, that is joint use of the entire yard shown coloured blue on the plan. The nature and extent of that joint use depends upon what has been going on in the previous year and has continued during the 30 years since her cottage was sold off. There is no question but that the flower border on the passage adjacent to the cottage was part of the established scheme of things so that the defendants were not entitled to summarily remove it in 1996. The claimant has status to assert and protect the communal rights.”
    9. The District Judge’s reasons for granting a more restricted declaration than that which the respondent claimed was set out in a later passage in his judgment in which he said:
    10. “There is also the question of the removal of the grass surface of the passage, being that part of the blue land between the “claimants” flower bed and her cottage. The passage is part of the right of way enjoyed by all the cottages as an essential means of gaining direct access to the communal yard and their back doors. This area is more of an access road than the enclosed yard and the surface does not have to be grass. Although I condemn the manner in which the defendants removed this surface I am not, in the exercise of any discretion I may have, prepared to grant any relief to the claimant provided that the defendants now resurface this land in an acceptable manner so it can again be used as a right of way in all weather.”
    11. The appellants appealed to the Circuit Judge on a number of grounds, only one of which was pursued. It was in the following terms:
    12. “The District Judge erred in law in finding that a right to cultivate the common garden, hang washing and generally enjoy land was capable of existing as an easement and/or was capable of being acquired by prescription or implied grant.”
    13. The Circuit Judge, on those facts, held that the respondent had established a right known to law over the blue land, which he described as a right to use the land as a communal garden. The grounds of appeal to this court are that:
    14. “The judge erred in law in holding that the right claimed by the claimant that is to say the right in common with the owners of the freehold properties surrounding the freehold land shown edged in blue and hatched black on the plan annexed to the defence (“the blue land”) to use the blue land as their communal garden was capable of existing as an easement and/or could be acquired by prescription or implied grant.”
    15. The appellants accept that the findings of fact made by District Judge Ashton were sufficient to justify his conclusion that, if the use made of the blue land was capable of amounting to an easement, it had continued for sufficiently long to entitle the respondent to that easement either by prescription or implied grant under s. 62 of the Law of Property Act 1925. It was submitted, however, that the easement as defined by District Judge Ashton and HHJ Kershaw was so extensive as to amount, in effect, to a claim to use the land to the exclusion of the appellants, and was an attempt to dress up a claim for adverse possession, which could not succeed because of the shared nature of the use, as a claim for an easement. It was submitted that such an extensive use could not be justified as an easement even if the subject of an express grant, but certainly could not be created by way of prescription. We were referred to the House of Lords decision in Dyce –v- Hay (1852) 1 Macq 305, in which the side note reads as follows:
    16. “There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected. Semble, that where a claim in the nature of a servitude or easement is incapable of judicial control and restriction it cannot be sustained by prescription. It does not follow that rights sustainable by grant are necessarily sustainable by prescription.”
    17. This principle was applied by Upjohn J in Copeland –v- Greenhalf [1952] 1 Ch 488. In that case the plaintiff was the owner of an orchard, access to which was over a strip of land owned by the plaintiff. The defendant was a wheel-wright, whose premises were opposite to the strip of land across a road, also owned by the plaintiff. The plaintiff brought an action against the defendant claiming to restrain him from placing and leaving vehicles on the strip. The defendant’s claim was, as proved at the trial, that for 50 years he and his father before him had with the knowledge of the plaintiff and of her predecessors in title, continuously stored along the strip, except for a space left for access to the orchard, customers’ vehicles awaiting and undergoing repair, and awaiting collection after repair. The judge held that the right exercised and claimed was too extensive to constitute an easement in law as it amounted practically to a claim to the whole beneficial use of that part of the strip of land over which it had been exercised. At page 498, the judge said:
    18. “I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically the defendant is claiming the whole beneficial use of the strip of land on the south east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim for possession of a servient tenement if necessary, to the exclusion of the owner; or at any rate to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject matter of an easement. It seems to me that to succeed, this claim must amount to a successful claim of possession by reason of long adverse possession. I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription.”
    19. The appellants accept that this court has held in the case of In re Ellenborough Park [1956] 1Ch 131 that an express grant of the right to the enjoyment of a communal garden can constitute an easement. In that case the owners of Ellenborough Park sold off surrounding plots of land also owned by them by conveyances which granted each purchaser
    20. “the full enjoyment .... at all times hereafter in common with the other persons to whom such easements may be granted of the pleasure ground” (the park) “.... but subject to the payment of a fair and just proportion of the costs, charges and expenses of keeping in good order and condition the said pleasure ground.”
    21. The vendors covenanted to keep the park as an ornamental pleasure ground. Amongst the issues raised on the appeal from the decision of Danckwerts J that this created an easement known to law, was the argument that the dominant owners’ rights were too wide and vague and inconsistent with the rights of the servient owners.
    22. This court concluded that as a matter of construction, the park became a communal garden for the benefit and enjoyment of those whose houses adjoined it and were in its close proximity. It formed the collective garden of the neighbouring houses giving the owners the right to enjoy the amenities that it provided. The servient owners retained the right to the produce from the garden, and to design and maintain it as they wished subject only to the obligation that it should remain available as a communal garden to the dominant owners. In the court’s judgment Lord Esher said at page 176:
    23. “We see nothing repugnant to a man’s proprietorship or possession of a piece of land that he should decide to make it and maintain it as an ornamental garden and should grant rights to a limited number of other persons to come into it for the enjoyment of its amenities.”
    24. The appellants submit, however, that this decision is of no assistance in the present case. They point out that the right in question was the subject matter of an express grant with detailed provisions as to the nature of the respective rights and obligations of the dominant and servient owners. They point out that the garden was created, controlled and maintained by the servient owners. In contrast, they submit that in the present case the use relied upon by the respondent as establishing her prescriptive right indicates that the respondent and the other cottage owners were asserting the right themselves to control and maintain the area as a communal garden and amenity space, with no evidence as to the correlative rights or obligations of the appellants themselves which could in any way circumscribe what is therefore a wide ranging entitlement akin to that asserted by the defendant in Copeland –v- Greenhalf, and effectively excluding the appellants from any beneficial use of the blue land.
    25. We were referred to a number of other authorities which, it is submitted, underline the general principle that the right claimed must not to be such as would leave the servient owner without any reasonable use of his land if it is to exist as an easement. In Grigsby –v- Melville & Anr [1972] 1 WLR 1355 Brightman J said at page 1364 that the asserted right to use premises as a store gave, in effect, an exclusive right of user over the whole of the servient tenement and he would, if it had been necessary to do so, have followed Copeland –v- Greenhalf. In London & Blenheim Estates Ltd –v- Ladbrook Retail Parks Ltd [1992] 1WLR 1278, Judge Paul Baker QC sitting as a High Court Judge applied that same test to a claimed right to park cars, and concluded on the facts of that case that the right claimed did not preclude use of the servient tenement in such a way as to fall foul of the principle. However, in Batchelor –v- Marlow & Anr [2001] EWCA Civ 1051, another case involving a claim to the right to park cars, this court concluded that the right there claimed was so extensive as to make the servient owner’s rights of ownership of the land illusory, and accordingly held that the right claimed was not capable of amounting to an easement.
    26. The only case in which what apparently amounted to exclusive use of premises was claimed as an easement was the case of Wright –v- McAdam [1949] 2 KB 744. In that case the tenant of a flat in a property claimed the right to use a shed in the garden for the storage of coal. The main argument in the case concerned the question of whether or not the use was essentially by permission and licence, which the Court of Appeal concluded in the tenants’ favour. Jenkins LJ during the course of his judgment, said:
    27. “Next, the right was, as I understand it, a right to use the coal shed in question for the purpose of storing such coal as might be required for the domestic purposes of the flat. In my judgment that is a right or easement which the law would clearly recognise and is a right or easement of a kind which could readily be included in a lease or conveyance by the insertion of appropriate words in the parcels.”
    28. The appellants submit that this case is of no assistance to the court. The Copeland –v- Greenhalf point was never argued. It was a completely different factual situation. And in particular, in dealing with any apparent conflict between Wright –v- McAdam and Copeland –v- Greenhalf, Brightman J in Grigsby –v- Melville & Anr considered that the difference in the facts was such that he was at liberty to follow Copeland –v- Greenhalf.
    29. The respondent submits that the appellants’ argument is based on a false premise. The facts found by District Judge Ashton did not preclude the appellants from using the land. That was recognised by his refusal to grant a declaration in relation to the grassed surface of the strip of land, restricting relief as he did to the flower bed. It is submitted that all that is claimed, and all that the evidence established, was that the blue land had been used as a communal garden for recreational and amenity purposes, and a right of way. The right to enjoy the land as a communal garden was clearly a right capable of subsisting as an easement provided that there was the necessary connection between the dominant and the servient tenement, as was established in In Re Ellenborough Park. The fact that the owners of the dominant tenements had, as a matter of fact, maintained the garden did not as a matter of law mean that the appellants had been excluded from using it. On a proper analysis, the respondent submits, the dominant owners had simply been carrying out that which they were entitled to do, namely such works as were necessary to enable them to enjoy the right to use the garden as a communal garden for recreational and amenity purposes. On that analysis, the appellants retain the right themselves to enter the blue land and do whatever they wish to do on that land, provided that it maintains its character as a garden which can be enjoyed by the dominant owners.
    30. The respondent further submits that there is no uncertainty about the respective rights and obligations, despite the absence of any deed. The appellants are entitled to exercise their undoubted rights over the blue land provided that they do not substantially interfere with the respondent’s right to enjoy it as a garden. It follows that District Judge Ashton’s order was justified in that the destruction of the flower bed had been carried out without notice and without any intent that the blue land would retain its character as a garden. It is submitted that District Judge Ashton was right to conclude:
    31. “As stated in In Re Ellenborough Park the categories of easement are not closed and in my experience many older properties enjoy rights over communal gardens and yards. It may be that reallocation of the layout of such areas may be required from time to time but the land owner cannot simply do this for his own convenience without prior consultation with all concerned. That is what happened in this case and it will not be supported by a court of equity.”
    32. It is submitted that this requires the appellants, if they wish to exercise their rights, to do so on reasonable notice, with reasonable proposals, and for good reason.
    33. In general terms, I consider the respondent’s arguments are correct. In In Re Ellenborough Park Lord Esher MR said at page 163:
    34. “For the purposes of the argument before us Mr Cross and Mr Goff were content to adopt, as correct, the four characteristics formulated in Dr Cheshire’s Modern Real Property 7th Ed pp 456 at seq. They are:
      (1) There must be a dominant and servient tenement:
      (2) An easement must “accommodate” the dominant tenement.
      (3) Dominant and servient owners must be different persons, and
      (4) A right over land cannot amount to an easement, unless it is capable of forming the subject matter of a grant.”
    35. Clearly in the present case the first three characteristics have been met. As to the fourth characteristic, the Court of Appeal in In re Ellenborough Park held that an easement to use land as a communal garden was capable of forming the subject matter of a grant. However there is no doubt that there is a real difference between a case in which the easement claimed is said to have been the subject matter of an express grant, and one which is said to arise by reason of prescription or under s. 62 of the Law of Property Act 1925. In the former case, the issue is simply one of construction of the grant. And the court will undoubtedly lean in favour of the creation of an easement if the intention of the parties was clearly to that end. In the latter case, the court has the more difficult task of assessing the evidence as to alleged use in order to determine whether the claimed right has been established. But if it is clear from that evidence that use has been made of the land for the requisite period which is capable of amounting to an easement, it seems to me that a court should not be deflected from declaring the existence of an easement which can be sensibly formulated by the fact that, of necessity, its parameters may not be so clearly defined as they could be in a deed.
    36. In my judgment, the findings of fact by District Judge Ashton are conclusive of the matter in the respondent’s favour. Even though the appellants had not themselves created or maintained the communal garden, the blue land had been used as such ever since the sale of the properties. The fact that the appellants had been content to allow the dominant owners over the years to determine the layout of the garden and to have maintained it themselves does not seem to me to derogate from the conclusion that they have been prepared to set aside this land for the use of the dominant owners as a communal garden. As District Judge Ashton himself recognised, this was a potential advantage to the appellants and their predecessors in title at the time that the properties were originally sold.
    37. I am therefore satisfied that the facts found by District Judge Ashton were sufficient to justify both his and the Circuit Judge’s conclusions that the respondent was entitled to a right to use the blue land as a communal garden along with the other dominant owners. Those facts do not justify the conclusion that the right created by the established use excluded the appellants from any use which they might wish to make of the land. It restricted that use only to the extent necessary to ensure that the blue land as a whole could still be enjoyed by the dominant owners, and in particular the respondent, as a communal garden for recreational and amenity purposes. However, the declaration made by District Judge Ashton goes further than is necessary to reflect the right which he had concluded had been established on the evidence. In so far as it suggested that the respondent had a right to the restoration of the flower bed, in the sense that the existence of a flower bed in that position was the consequence of the right which he concluded had been established, it was wrong.
    38. But by removing the flower bed without notice, and without giving her any opportunity to re-create or re-locate it or its contents elsewhere in the way they did, the appellants undoubtedly did interfere with that right. That does not mean that the appellants are not entitled to create a gravelled driveway over that strip of land. That would not itself necessarily interfere with the respondent’s right to use the blue land, as a whole, as a communal garden together with the other dominant owners, bearing in mind that a right of way exists over that strip of land for the benefit of all the dominant owners. Whether any particular proposal by the appellants to create such a driveway would substantially interfere with the respondent’s rights would be a matter for consideration of all the facts. The proper way to reflect the respective rights of the parties seems to me to require an amendment of the declaration granted by District Judge Ashton to a declaration that:
    39. “The claimant is entitled to a right to use the blue land as a communal garden for recreational and amenity purposes”
    40. This will inevitably require the appellants, if they wish to carry out any works on the blue land, to do so in a way which will substantially maintain its character as a communal garden for recreational and amenity purposes. And this will require them to demonstrate that any proposed work would maintain that character, and in practice the work is likely to require prior consultation, and preferably agreement, if it is not to amount to a significant interference with the respondent’s rights.
    41. District Judge Ashton awarded the respondent £200 damages for the destruction of her flowerbed. Although he considered that the respondent’s rights over the flowerbed were more extensive than I consider them to be, nonetheless, the destruction without notice of the flowerbed was, as I have already said, a substantial interference with her right which is capable of sounding in damages. I see no reason to interfere with the District Judge’s figure of £200.
    42. I would therefore allow the appeal but only to the limited extent to which I have indicated.
    43. Lord Justice Mance: I agree.

      Lord Justice Simon Brown: I also agree.

      ORDER: Appeal allowed in part and declaration given. The appellants to pay the respondent 75 per cent of her costs, those costs summarily assessed in total at £20,000.
      (Order not part of approved judgment)

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