Housden & Anor v Conservators of Wimbledon & Putney Commons

Factual and Procedural Background

Wimbledon and Putney Commons, formerly waste of the manor vested in Earl Spencer and covering approximately 1,000 acres, are held by the respondent Conservators under the Wimbledon & Putney Commons Act 1871 (the 1871 Act), as amended. The appellants, Mr and Mrs Housden, are registered proprietors of a house known as No. 8 Southside Common, Wimbledon SW19, built between 1883 and 1893 on a plot of land adjacent to a larger property called "Laurel Grove." The appellants claim a prescriptive right of way over a strip of land forming part of the commons (the Access Way) to and from the public highway called Southside Common, relying on uninterrupted use openly and as of right for over forty years prior to the commencement of proceedings.

On 12 September 2003, the appellants applied to register an easement over the Access Way, which the Conservators opposed. The application was dismissed by the Land Registry Adjudicator on 11 July 2006. The appellants appealed to the High Court, where Mr Roger Kaye QC dismissed their appeal with costs on 17 May 2007. This second appeal concerns two issues: whether the Conservators have the power (vires) under the 1871 Act to grant an easement, and, if not, whether the absence of such power bars the appellants’ claim to a prescriptive easement under the Prescription Act 1832 (the 1832 Act).

Legal Issues Presented

1. Whether the Conservators have statutory power under the Wimbledon & Putney Commons Act 1871 to grant an easement over part of the commons (the vires issue).
2. If the Conservators lack such power, whether this incapacity bars the acquisition of a prescriptive easement under the Prescription Act 1832 based on more than forty years user (the prescription issue).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gardner v. Hodgson's Kingston Brewery Co Ltd [1903] AC 229	Interpretation of the Prescription Act 1832 section 2 and the presumption of grant in prescription claims.	Referenced in explaining the statutory effect of uninterrupted user and the presumption of grant under the 1832 Act.
Tapling v. Jones (1865) 9 HLC 290	Rights to ancient light under section 3 of the 1832 Act do not require a presumption of grant.	Used to contrast rights to light with other easements under the 1832 Act, highlighting statutory creation of rights without need for presumed grant.
The Proprietors of the Staffordshire and Worcestershire Canal Navigation v. The Proprietors of the Birmingham Canal Navigation (1866) LR 1 HL 254	Effect of lack of power (ultra vires) to grant easements on prescription claims under section 2 of the 1832 Act.	Held that if the servient owner lacked power to grant, prescription under section 2 could be defeated; binding authority applied by the court.
Rochdale Canal Co v. Radcliffe (1852) 18 QB 287	Supports the principle that prescription claims can be defeated if the grant would be ultra vires.	Cited to reinforce the legal impossibility of acquiring easements by prescription when the grantor lacks capacity.
Neaverson v. Peterborough RDC [1902] 1 Ch 557	Legal origin for user cannot be inferred if it involves illegality or statutory violation.	Applied to confirm that prescription cannot arise from illegal or ultra vires grants.
R v. Oxfordshire CC, Ex p. Sunningwell Parish Council [2000] 1 AC 335	General law of prescription and attribution of lawful title by long user.	Not directly addressing servient owner’s incapacity but referenced in the context of prescription principles.
Bakewell Management Ltd v. Brandwood [2004] 2 AC 519	Acquisition of prescriptive rights despite statutory prohibition on use without consent.	Distinguished as not involving ultra vires grants; confirmed prescriptive rights can arise despite unlawful user in some contexts.

Court's Reasoning and Analysis

The court first addressed the vires issue by examining the Wimbledon & Putney Commons Act 1871, focusing on sections 8 and 35. Section 8 incorporated the Conservators with power to dispose of land, while section 35 imposed a broad prohibition on disposing of any part of the commons. The judge below had held that the Conservators lacked power to grant easements over the commons, viewing section 35 as an absolute bar.

However, the appellate court adopted a purposive and contextual interpretation. It recognized the environmental and public conservation objectives of the 1871 Act, emphasizing preservation of the commons as open, unenclosed, and unbuilt spaces. The court distinguished between disposing of the physical commons and granting an easement, which is a right over the land rather than a part of the land itself. It held that granting an easement would not physically enclose or build on the commons nor diminish its openness, and thus would not contravene section 35.

The court also drew analogy with the National Trust’s powers, which include express authority to grant easements over inalienable land, illustrating that statutory prohibitions on alienation do not necessarily preclude easements.

Accordingly, the court concluded that the Conservators do have power under the 1871 Act to grant an easement over the Access Way.

Regarding the prescription issue, the court reviewed the Prescription Act 1832, particularly section 2, which provides for acquisition of easements by uninterrupted user over twenty or forty years. The court noted that the Act’s language requires claims to be “lawfully made at common law,” implying that if the servient owner lacks power to grant, prescription may be barred.

The court analysed the leading House of Lords decision in the Staffordshire Canal case, which held that if the servient owner’s grant would be ultra vires, prescription under section 2 cannot confer a right. This precedent binds the court to hold that incapacity to grant easements is a bar to prescriptive acquisition under section 2 of the 1832 Act.

Although some legal commentators and authorities suggest a more flexible approach, the court felt compelled to follow the binding precedent. It acknowledged the complexity and confusion in the law of prescription, noting ongoing law reform efforts.

Because the court resolved the appeal in favor of the appellants on the vires issue, it did not need to decide the prescription issue definitively.

Holding and Implications

The appeal is allowed on the vires issue. The Conservators have the statutory power under the Wimbledon & Putney Commons Act 1871 to grant an easement over the Access Way to the appellants.

The court did not decide the prescription issue, but indicated that if the Conservators lacked power to grant, the appellants’ claim to a prescriptive easement under the Prescription Act 1832 would likely fail due to binding precedent. The direct effect of this decision is that the appellants are entitled to the easement over the Access Way by virtue of the Conservators’ power to grant it.

No new precedent was set on the prescription issue, and the court encouraged ongoing law reform in this area due to the complexity and practical difficulties in the existing law.