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Michael Housden & Anor v Conservators of Wimbledon & Putney Commons (2008)


The conservators of Wimbledon and Putney commons had power under the Wimbledon and Putney Commons Act 1871 to grant an easement over an access way on the commons.


The appellants (H) appealed against a decision dismissing their application to register an easement over an access way on Wimbledon common. H claimed that their property enjoyed the benefit of a prescriptive right of way to and from the public highway on foot and with vehicles over an access way forming part of Wimbledon and Putney commons. The commons were held by the respondent conservators on the terms of the Wimbledon and Putney Commons Act 1871. H relied on uninterrupted user, openly and as of right, for a period of more than 40 years next before the commencement of the proceedings. H sought to register an easement over the access way. The adjudicator to the Land Registry and the judge on appeal held that, on the true construction of the 1871 Act, in particular s.8 and s.35, the conservators had no power to grant an easement over part of the commons and that, on the true construction of the Prescription Act 1832, in particular s.2, the conservators' inability to grant an easement was a bar to the acquisition of a prescriptive right of way.


(1) The social value reflected in the 1871 Act was conservation of the natural environment in an urban locality for the benefit of an expanding local population. The environmental purpose could be protected and promoted without adopting a narrow, literal interpretation of the 1871 Act. Section 35 was a very wide prohibition against alienation of the commons by the conservators. The grant of an easement over land was disposing of a right over land which formed the commons. Reading s.35 in the wider context of the Act as a whole, its apparent aim and its general scheme, it did not prevent the conservators from lawfully granting an easement over the access way. The grant would not be incompatible with the conservators' overriding duty to conserve the commons as an unenclosed, unbuilt-on, open space. The wording of s.35 was reasonably open to an interpretation enabling the conservators to grant easements in circumstances consistent with the conservation of the commons as an open space. In granting an easement the conservators would not be unlawfully disposing of or alienating part of the commons contrary to s.35. (2) (Obiter) If the conservators could not lawfully grant an easement over the access way, that fact prevented H from acquiring a prescriptive right based on 40 years' user under s.2 of the 1832 Act, Staffordshire and Worcestershire Canal Navigation v Birmingham Canal Navigations (1866) LR 1 HL 254 HL considered.

Appeal allowed

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18 Mar 2008

Court of Appeal
Mummery LJ, Carnwath LJ, Richards LJ

‚ÄčLTL 18/3/2008 

Timothy Dutton QC

Practice areas
Real Estate