Housden and another v Conservators of Wimbledon and Putney Commons

Common land – Claim to private right of way over common – Application to register right rejected – Whether defendants as owners of common capable of granting right – Whether possible to acquire right by prescription in absence of capable grantor – Section 2 of Prescription Act 1832 – Appeal allowedThe appellants were freeholders of a property that was accessed from a public road over a strip of land that formed part of Wimbledon Common. They applied to the Land Registry to register a private right of way over the land, claiming that such a right had been acquired by prescription under section 2 of the Prescription Act 1832. The respondents, in whom the common was vested by virtue of the Wimbledon and Putney Commons Act 1871, objected to the application. They submitted that, on the true construction of the 1871 Act, in particular of section 35 read in conjunction with section 8, they had no power to grant easements, and that the appellants could not acquire a prescriptive right where there was no capable grantor of the right claimed. The Land Registry adjudicator rejected the appellants’ application on the grounds that the respondents were not capable grantors and the appellants had not otherwise acquired the right by reason of 40 years’ user under the second part of section 2 of the 1832 Act. On appeal to the High Court, the appellants argued, by analogy with section 3 of the 1832 Act, that a right acquired under the second part of section 2 was, unlike those acquired under the first part, absolute and indefeasible and could not be defeated by proof that the grantor was not capable of granting the right in question.The High Court dismissed the appeal. It held that, on the true construction of sections 8 and 35of the 1871 Act, the respondents had no power to grant an easement over part of the common. Moreover, on the true construction of section 2 of the 1832 Act, the inability of the respondents to grant an easement was a bar to the acquisition of a prescriptive right of way: [2007] EWHC 1171 (Ch); [2007] 1 WLR 2543; [2007] PLSCS 107. The appellants appealed. The two issues on appeal were whether: (i) the respondents had power to grant an easement under the 1871 Act; and, if not, (ii) the absence of a power to grant an easement was fatal to the appellants’ claim to a prescriptive easement of way under the 1832 Act. Held: The appeal was allowed.(1) On reading section 35 in the context of the 1871 Act as a whole, its apparent aim and general scheme did not prevent the respondents from lawfully granting an easement over the access way. The legislative text had to be read sensibly in context to give full effect, so far as a fair and reasonable reading of the statutory language allowed, to the stated purpose and the scheme devised to attain it.The social value reflected in the 1871 Act was the conservation of the natural environment in an urban locality for the benefit of an expanding local population. A scheme was established with a view to preserving the commons as “open spaces of large extent, unenclosed and unbuilt on” for “great local and public advantage” by vesting them in an incorporated body of appointed and elected conservators, upon whom duties were imposed and powers conferred. The environmental purpose could be protected and promoted without adopting a narrow, literal interpretation of the 1871 Act.The grant would not be incompatible with the respondents’ overriding duty to conserve the commons as unenclosed, unbuilt-on open spaces. The access way would not cease to be an open space if the appellants were granted an easement over it since it would not entitle them to enclose or build on the land. The easement would not interfere with the public’s ability to enjoy the part of the common across which the access way ran.(2) That conclusion made it unnecessary to decide the prescription issue but, had it been necessary to do so, the court would have been constrained by earlier binding authorities to the view that the lack of a capable grantor prevented the acquisition of a prescriptive right under the second part of section 2 of the 1832 Act: Staffordshire and Worcestershire Canal Navigation Proprietors v Birmingham Canal Navigation Proprietors (1866) LR 1 HL 254 and Tapling v Jones (1865) 11 HL Cas 290 considered.Timothy Dutton QC (instructed by Russell-Cooke LLP) appeared for the appellants; Guy Fetherstonhaugh QC (instructed by Gregsons) appeared for the respondents.Eileen O’Grady, barrister