Re Ellenborough Park
| Re Ellenborough Park | |
|---|---|
Ellenborough Park
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| Court | Court of Appeal |
| Decided | 15 November 1955 |
| Citation(s) | [1956] Ch 131, [1955] 3 WLR 892, [1955] 3 All ER 667 |
| Keywords | |
| Easement | |
Re Ellenborough Park [1955] EWCA Civ 4 is an English land law case primarily concerning the validity of an easement.
Ellenborough Park is a large area of parkland in Weston-super-Mare. The land was owned in 1855 by two tenants in common, who sold off parts of the land for the building of houses, and granted rights to the owners of the houses to enjoy the parkland which remained. The land was enjoyed for some time to come, until 1955, when Judge Danckwerts delivered his decision on the case which arose. Part of the problem arose out of the fact that the War Office had taken possession of the land during World War II, and compensation was due to be paid to the owners of the properties built on land surrounding the land which had been occupied during the war under the Compensation Defence Act 1939, section 2 (1). Beneficiaries of the trust of the original owners of the land challenged this, stating that the property owners had only a personal advantage (a licence, with no proprietary rights), and not an easement proper (which would include proprietary rights).
Lord Evershed MR held the occupiers of the properties in question did enjoy an easement over Ellenborough Park. He determined that four criteria for defining an easement existed, taken from Cheshire's Modern Real Property, and said the following.
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Can it be said, then, of the right of full enjoyment of the park in question which was granted by the Conveyance of the 23rd December, 1864, and which, for reasons already given, was, in our view, intended to be annexed to the property conveyed to Mr Porter, that it accommodated and served that property? It is clear that the right did, in some degree, enhance the value of the property and this consideration cannot be dismissed as wholly irrelevant. It is, of course, a point to be noted; but we agree with Mr Cross's submission that it is in no way decisive of the problem; it is not sufficient to show that the right increased the value of the property conveyed unless it is also shown that it was connected with the normal enjoyment of that property. It appears to us that the question whether or not this connection exists is primarily one of fact, and depends largely on the nature of the alleged dominant tenement and the nature of the right granted. As to the former, it was in the contemplation of the parties to the 1864 Conveyance that the property conveyed should be used for residential and not commercial purposes. That appears from the Conveyance itself, and the covenant by the purchaser already quoted, that the dwelling-house etc. which he bound himself to build should not "be occupied or used as an open or exposed shop or for any purpose of trade or commerce other than a lodging house or private school or seminary" without the vendor's written consent. Since it is stated in paragraph 4 of Mr Rendell's affidavit in support of the Summons and has been conceded that all the conveyances of plots for building purposes fronting or near Ellenborough Park were as regards (inter alia) user substantially the same as the 1864 Conveyance, the inevitable inference is that the houses which, were to be built upon the plots were to constitute a residential estate. As appears from the map which is Exhibit "G" to Mr Rendell's further affidavit of the 13th October, 1955, the houses which were built upon the plots around and near to Ellenborough Park varied in size, some being large detached houses and others smaller and either semi-detached or in a row. We have already stated that the purchasers of all the plots which actually abutted on the Park were granted the right to enjoy the use of it as were also the purchasers of some of the plots which, although not fronting upon the Park, were only a short distance away from it. As to the nature of the right granted, the 1864 Conveyance shows that the Park was to be kept and maintained as a pleasure ground or ornamental garden and that it was contemplated that it should at all times be kept in good order and condition and well stocked with plants and shrubs; and the vendors covenanted that they would not at any time thereafter erect or permit to be erected any dwelling-house or other building (except a grotto, bower, summer-house, flower-stand, fountain, music-stand or other ornamental erection) within or on any part of the pleasure ground. On these facts Mr Cross submitted that the requisite connection between the right to use the Park and the normal enjoyment of the houses which were built around it or near it had not been established. He likened the position to a right granted to the purchaser of a house to use the Zoological Gardens free of charge or to attend Lord's Cricket Ground without payment. Such a right would undoubtedly, he said, increase the value of the property conveyed but could not run with it at law as an easement, because there was no sufficient nexus between the enjoyment of the right and the use of the house. It is probably true, we think, that in neither of Mr Cross's illustrations would the supposed right constitute an easement, for it would be wholly extraneous to, and independent of, the use of a house as a house, namely, as a place in which the householder and his family live and make their home; and it is for this reason that the analogy which Mr Cross sought to establish between his illustrations and the present case cannot, in our opinion, be supported. A much closer analogy, as it seems to us, is the case of a man selling the freehold of part of his house and granting to the purchaser, his heirs and assigns, the right, appurtenant to such part, to use the garden in common with the vendor and his assigns. In such a case the test of connection, or accommodation, would be amply satisfied; for just as the use of a garden undoubtedly enhances, and is connected with, the normal enjoyment of the house to which it belongs, so also would the right granted, in the case supposed, be closely connected with the use and enjoyment of the part of the premises sold. Such, we think, is in substance the position in the present case. The park became a communal garden for the benefit and enjoyment of those whose houses adjoined it or were in its close proximity. Its flower beds, lawns and walks were calculated to afford all the amenities which it is the purpose of the garden of a house to provide; and apart from the fact that these amenities extended to a number of householders instead of being confined to one (which on this aspect of the case is immaterial) we can see no difference in principle between Ellenborough Park and a garden in the ordinary signification of that word. It is the collective garden of the neighbouring houses to whose use it was dedicated by the owners of the estate and as such amply satisfied, in our judgment, the requirement of connection with the dominant tenements to which it is appurtenant. The result is not affected by the circumstance that the right to the park is in this case enjoyed by some few houses which are not immediately fronting on the park. The test for present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the communal garden) of the houses to which its enjoyment is annexed. But we think that the test is satisfied as regards these few neighbouring, thought not adjacent, houses. We think that the extension of the right of enjoyment to these few houses does not negative the presence of the necessary "nexus" between the subject-matter enjoyed and the premises to which the enjoyment is expressed to belong.
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