REF/2005/0236

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Michael Richard Housden and Elisabeth Housden
Applicants

and

Conservators of Wimbledon and Putney Commons
Respondents

Property Address: 8 Southside Common, Wimbledon, London, SW19 4TL
Title Number: SY75957

Before: Mr Edward Cousins sitting as the Adjudicator to HM Land Registry

Sitting at: Procession House
On: Tuesday 11th July 2006

Applicant Representation: In person	
Respondent Representation: Guy Featherstonhaugh QC instructed by Messrs Gregsons, Solicitors

DECISION

EASEMENT – right of way – prescription – Wimbledon and Putney Commons Act 1871 ss. 8 and 35 - Prescription Act 1832, ss. 2 and 3 – true construction of the word “dispose” – definition of “the commons” - whether the Respondents are capable  grantors – doctrine of Lost Modern Grant – 

Cases referred to: 
Rhyl UDC v Rhyl Amusements Limited [1959] 1 WLR 465
Carter v Carter [1896] 1Ch 62
Structadene Limited v Hackney LBC [2001] 2 ALL ER 225
Tapling v Jones (1865) 11 HLC 290
Jordeson v Sutton, Southcoates and Drypool Gas Co [1898] 2 Ch.614
Dalton v Angus & Co (1881) LR6 App Cas 740
Lemaitre v Davis (1881) 19 Ch D 281
Proprietors of the Staffordshire and Worcestershire Canal Navigation v Birmingham Canal Navigations (1866) LR 1 HL 254
Neaverson v Peterborough RDC [1902] 1 Ch 557
Tehidy Minerals Ltd v Norman [1971] 2 QB 528
Hulley v Silversprings Bleaching and Dying Co Ltd [1922] 2 Ch 268
West Middlesex Golf Club Ltd v Ealing LBC) [1993] 68 P & CR 461
Bakewell Management Limited v Brandwood [2004] 2 AC 519
Hanning v Top Deck Travel Group Limited (1993) 68 P & C R 14
Blacker v Wimbledon and Putney Commons Conservators (2004) 51 EG 90

THE APPLICATION
1.	This is an application made in Form AP1 dated 12th September 2003 by Mr Michael Richard Housden and Elisabeth Housden (“the Applicants”) to register the benefit of a private right of way over an accessway (“the Accessway”) leading to their house, No. 8 Southside Common, Wimbledon, London SW19 4TL (“the Property”). The Applicants are the registered proprietors of the Property at HM Land Registry with title absolute under title number SY75957.  The respondents to this Application are the conservators (“the Conservators”) of Wimbledon and Putney Commons (“the Common”). 

2.	The Accessway crosses land part of which is currently the subject matter of a pending application lodged by the Conservators for first registration of freehold land comprising the whole of the Common under title number TGL197398. That part of the Accessway vested in the Conservators and the subject of this dispute is the land shown coloured yellow on the plan annexed to this Decision (“the Strip”). The other part of the Accessway (not forming part of the Strip) is apparently a public footpath maintained by the London Borough of Merton (“the Council”).  This is marked on the Plan lying between the pecked lines hatched blue. Notice of the Application had been served upon the Council who initially objected, but then subsequently withdrew their objection. The issue of the ownership of that part of the Accessway not forming part of the Strip does not concern me. For the purposes of this Decision I am therefore only concerned with the issue of the rights of way over the Strip.	

3.	The Application made by the Applicants is for the registration of the benefit of a private right of way with or without vehicles over the Strip as being appurtenant to the Property.  The claim is based upon prescription and is supported by statutory declarations made by Mr Housden dated 11th September 2003 and 4th February 2004.  

4.	The grounds of the objection made by the Conservators is that they have no power to grant an easement to the extent that the rights of way over the Strip affect land within the pending application for first registration under title number TGL197398.  It is submitted that this lack of power derives from the provisions of the Wimbledon and Putney Commons Act 1871 (“the 1871 Act”) by virtue of which, inter alia, Wimbledon Common became vested in the Conservators. The essential point made is that this vesting precludes a prescriptive right of way being acquired on the basis that there has been no capable grantor since 1871.  Other points of substance are also made by the Conservators, to which I shall refer again below.  

THE BACKGROUND TO THE CLAIM
The roots of title
5.	The Conservators are the freehold owners of the Common which extends to approximately 1,000 acres.  The Conservators were constituted under the 1871 Act which, in accordance with the Preamble to the statute, was enacted to provide the Conservators with the duty “… to keep [the Common] for ever open and uninclosed and unbuilt on … and to preserve the same for public and local use, for purposes of exercise and recreation, and other purposes …”.  The Common was vested in the Conservators by virtue of section 32 of the 1871 Act.  There are detailed plans annexed to the 1871 Act which define the extent of the Common by reference to green colouring.  This plan appears to be based upon the 1865 Ordnance Survey County Series map and is drawn to a scale of 1: 2,500.  Section 3 of the 1871 Act defines these plans as the “Deposited Plans”.

6.	An important feature of this case, and to the resolution of dispute, is that the Property itself was constructed subsequent to the enactment of the 1871 Act on a plot of land lying to the south west of a large property known as “Laurel Grove”. At that date the Property formed part of a larger plot of land to which access was gained over one of the accessways from the Common, but the Accessway itself was not in existence.  The Indenture under which the land was acquired was made on the 28th November 1882. It appears from the Applicants’ case that the date of construction was in 1883 - some 12 years after the Act came into force (viz. the opening submissions of Mr Housden; see also his second Statutory Declaration dated 4th February 2004).  Other evidence in the form of mapping was produced during the course of the hearing which indicates that the Property was constructed at about that time.  It is to be noted that the Accessway serving the Property was also constructed about then. The Land Registry have suggested in correspondence that the Accessway did not exist until it was first shown on the Ordnance Survey 1898 Edition, but for the purposes of this Decision I have taken the date of construction as being at the latest 1893. It is also to be noted that at intervals other accessways have historically been formed which connected those dwelling-houses with the road, Southside Common.  
7.	The Property is separated from the public road known as Southside Common by a pavement and a grass verge, respectively, the latter forming part the Common.  One of the contentions made by the Applicants is that until 1952 or thereabouts the pavement formed a private carriageway running across the frontages of the various dwelling-houses bordering the Common.  

8.	Thus, at some stage following the construction of the Property, and probably in about 1883, and certainly before 1893, the evidence in the form of mapping demonstrates that access to and egress from the Property has been maintained by the Applicants and their predecessors in title by means of the Accessway.  

9.	In short the Accessway, and more particularly the Strip, did not exist prior to the construction of the Property and therefore was not in existence prior to the enactment of the 1871 Act. 

10.	Further, the Strip does not form part of the Applicants’ registered title and that title does not include any easement granted in favour of the property over the Strip.  No evidence has been adduced by the Applicants that the Conservators expressly granted to them or their predecessors in title an easement over the Strip.  I should state that the Conservators are content to allow the Applicants to use the Strip for access on the basis of a personal licence and it has been stated both in writing and orally on a number of occasions that the Conservators have no intention of withdrawing that licence.  The Applicants, however, are not content with this position and seek to assert that they, or their predecessors in title, have acquired rights of way over the Strip, and indeed the Accessway. 

11.	The Conservators take the view (having been so advised by leading Counsel) that it is not within their powers to grant easements over any part of the Common.  They also take the view based upon such advice, that the Applicants cannot have acquired an easement by prescription, since the acquisition of prescriptive rights presupposes a competent grantor.

12.	The issues, therefore, are narrowly defined, although give rise to points of some complexity.  

THE ISSUE
13.	The essential matter for determination is the following – can an easement by prescription be acquired under the provisions of section 2 of the Prescription Act 1832 (“the 1832 Act”) in the circumstances of this case?  Two questions arise therefrom: -

(1)	Are the Conservators capable grantors under the 1871 Act?

(2)	If the answer to the first question is in the negative, is it possible for the applicants nevertheless to acquire prescriptive rights to that which the Conservators never had power to grant?

THE LEGAL POSITION
The first question – the capacity of the Conservators to grant easements
14.	In order to answer the first question it is necessary to have regard to the detailed provisions of the 1871 Act and its intended purpose.  I have already made reference to the Preamble to the 1871 Act.  Its emphasis is on the preservation of the natural state of the Common and the stress upon it being always kept uninclosed and unbuilt.  The subsequent sections prescribe the Conservators’ powers to deal with the Common and other land.  These can be summarised as follows: -

(1)	Section 4 – provides the definition of the Common.

(2)	Section 8 – provides the power granted to the Conservators “… to take and hold and to dispose of (by grant, demise, or otherwise) land and other property …” 

(3)	Section 34 – provides that the Conservators “… shall at all times keep the commons open, uninclosed, and unbuilt on, except as regards such parts thereof as are at the passing of this Act inclosed or built on, and except as otherwise in this Act expressed, and shall by all lawful means prevent, resist, and abate all encroachments and attempted encroachments on the commons, and protect the commons and preserve them as open spaces, and resist all proceedings tending to the inclosure or appropriation for any purpose of any part thereof.”

(4)	Section 35 – provides that “It shall not be lawful for the Conservators, except as in this Act as expressed, to sell, lease, grant, or in any manner dispose of any part of the commons.”

(5)	Section 36 – provides that “the Conservators shall at all times preserve, as far as maybe, the natural aspect and state of the commons, and to that end shall protect the turf, gorse, heather, timber and other trees, shrubs, and brushwood thereon.”

(6)	Section 38 – provides that “the Conservators may maintain and keep in good order, and from time to time let at a yearly, or other rent, or otherwise use, the buildings on [the Common] transferred to them by this Act, with the inclosures adjoining thereto or any part thereof …”

(7)	Section 39 – inter alia provides that “to make and maintain such roads and ways as maybe in their judgment necessary or proper”

(8)	Section 108 – provides that the 1871 Act does not prejudicially affect any right of way or other rights in, over, or affecting the Common.

15.	Reference was also made during the course of the hearing to sections 68 and 99.

16.	For the purposes of this decision the true construction of sections 8 and 35 are of paramount importance.  As to section 8, Mr Housden (who conducted the case with considerable skill on behalf of himself and his wife) submitted that the wording gave rise to an interpretation which allowed or enabled the Conservators to grant easements over the Common.  In order to achieve this result he puts forward two propositions as to its true construction.  They are:- 

(i)	The word “dispose” must be interpreted as including the grant of an easement, and
(ii)	 The word “land” must include the land forming part of the Common.

17.	I agree with the first proposition.  I find that on a true construction of the word “dispose” contained in section 8 the power of the Conservators extends to the grant of an easement and is not confined to an outright transfer of the interests of the Conservators.  The word “dispose” is given a wide meaning. The Conservators can dispose of land and other property by grant, demise or otherwise and the word “demise” clearly envisages something less than the total interest of the grantor. The words  “…by grant, demise or otherwise…” follow the word “dispose” in the wording of the section.

18.	 I appreciate that in Rhyl UDC v Rhyl Amusements Limited [1959] 1 WLR 465 (at page 473) it was held that the word “dispose” meant an outright disposition which was not satisfied by, for example, the grant of a lease.  In Carter v Carter [1896] 1Ch 62, however, it was held that the word “dispose” and the “disposition” in the Fines and Recoveries Act 1833 were not technical words but ordinary English words of wider meaning and, when not limited by the context, the words were sufficient to extend to all acts by which a new interest, whether legal or equitable, in the property was effectually created (at page 67).  I also refer to the case of Structadene Limited v Hackney LBC [2001] 2 ALL ER 225 (at page 231) that the interpretation placed by other Courts on the word “dispose” in the context of different statutes is of limited utility as it can have quite different meanings in different contexts.
19.	Thus having a regard to the context of the 1871 Act I find that on a strict construction of section 8 the word “dispose” includes the grant of an easement over “land and other property”.

20.	The difficulty, which then arises and is contained in the second proposition, is whether or not the words “land and other property” contained in section 8 extends to land comprising any part of the Common.  The question to be answered is whether the word “land” contained in section 8 includes land forming part of the Common when regard is had to the wording of the section 35 and the exception contained therein.  The latter section provides that it shall not be lawful for the Conservators “except as in this Act expressed …” to sell, lease, grant or in any manner dispose of any part of the [Common]”.  The Applicants for their part submit that the word “land” contained in section 8 includes land forming part of the Common thereby enabling the Conservators, inter alia, to grant easements over parts of the Common. 

21.	Before I embark upon this construction exercise I should state that I consider that the word “dispose” in section 35 is to be given an identical meaning as to that contained in section 8.  This means that in principle the Conservators can grant easements, but this is subject to the considerations to which I shall refer immediately below. 

22.	The Conservators, however, submit that if section 8 is to be construed in the manner contended for it comes into direct conflict with the prohibition contained in section 35.  Counsel for the Conservators points to the clear difference in wording between the two sections and in particular as to the word “land” in section 8 and the word “the commons” (i.e. the Common) contained in section 35. He argues that section 8 is a provision aimed at the acquisition of other land not forming part of the Common at the date of its acquisition by the Conservators in 1871 or other land subsequently acquired.  He submits that section 8 is an enabling section whereby the Conservators can subsequently divest themselves of such land acquired and not forming part of Common were it necessary to do so.  
23.	On first interpretation this submission would seem to place a considerable restriction on the powers of the Conservators.  Putting aside the question of the grant of a personal licence not being the disposal of an interest in land, the 1871 Act does not appear to provide in any case for the Conservators to sell, lease, grant or in any manner dispose of any part of the Common other than the power on the part of the Conservators contained in section 38 to “let at a yearly, or other rent, or otherwise use, the buildings on Wimbledon Common transferred to them by this Act, with the inclosures adjoining thereto or any part thereof …”.  Thus, the 1871 Act does not appear to envisage circumstances where it would be lawful for the Conservators to do the acts set out in section 35 other than the power contained in section 38.  

24.	Despite this, I consider that the submissions made by Counsel on behalf of the Conservators are correct. A distinction must be drawn between the provisions of section 8 and section 35 in that although the Conservators have the enabling power, inter alia, to grant easements over “land and other property”, such power does not extend to the grant of easements over the Common itself as defined in section 4 of the 1871 Act.  In other words I find that the “land and other property” referred to in section 8 does not include land comprising any part of the Common.  

25.	I appreciate that such an interpretation provides an inconvenience for the Conservators in that it limits their powers on a day to day basis to provide for circumstances where, for instance, it might become necessary to make formal grants of easements for certain purposes, such as rights of way over certain parts of the Common.  On the other hand, however, it also provides security for the public in the knowledge that the prohibition contained in section 35 prevents the disposal of any part of the Common where for instance the Conservators might be minded to make a commercial transaction by selling off a portion for gain.  I should also state that different consideration would probably apply to the grant of personal licences as the same may well not be construed as interests in land and therefore there is no divesting of the property interests of the Conservators.

26.	Thus, the answer to the first question is, in my judgment the following: the Conservators have no power or authority under section 35 of the 1871 Act to grant easements over the Common in the circumstances of the present case, there being no exception in the statute governing their ability to do so. The provisions of section 8 do not apply to land forming part of the Common, but to other land. The Conservators therefore are unable to grant a right of way and could not have granted such over the Strip forming part of the Accessway to the Applicants or their predecessors in title. 

The second question – the competency of the Conservators as grantors for the purposes of prescription
27.	The starting point for consideration of this issue is to be found in the provisions   contained in section 2 of the Prescription Act 1832 (“the 1832 Act”).  

“…..No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said Lord the King…..or being parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by shewing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the rights thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.”

28.	The interpretation of this section raises questions of some difficulty.  The point which arises for consideration is whether a right of way can arise under the provisions of section 2 of the 1832 Act after 40 years actual user even against an owner who is not capable of granting such a right.  Section 2 refers to the right to an easement being deemed “… absolute and indefeasible …” unless it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.  It is to be noted that this provision does not contain the additional wording which applies to prescription based on 20 years user contained in the earlier part of the section to the effect that the claim to prescription may be defeated in any other way by which the same is liable to be defeated at common law.  

29.	Thus, in short, although it is accepted by the Conservators that the Applicants have clearly established (through themselves and their predecessors in title) at least 113 years usage of the Strip, and more likely 123 years, this (according to the submissions made by Counsel on behalf of the Conservators) would not suffice for the purposes of section 2 of the 1832 Act.  The reason for this is that such user will only give rise to a prescriptive right if there has been a competent grantor during such period. 

30.	The difference between the shorter and longer periods described in section 2 of the 1832 Act is that in the case of the former the words operate negatively in that a claim to prescription based on 20 years user may be defeated in any other way by which the same is liable to be defeated at common law, whereas in the case of the latter positive words are used specifying that the right shall be deemed to be absolute and indefeasible.

31.	In principle, therefore, it should be possible to state that under the longer period defined in section 2 of the 1832 Act prescription could arise against bodies who have no power of grant, such as corporations.  The justification for this would be perceived on the basis that the positive right conferred by the 1832 Act should require no presumption of a grant by the servient owner.  There is, however, an apparent conflict in the authorities on this point and it is necessary to have some regard to these authorities for the purposes of deciding the question of the capability of the Conservators as grantors, or otherwise.  Some assistance can be gained by considering the provisions of section 3 of the 1832 Act which deals with the right of light.  
32.	Section 3 of the 1832 Act contains wording similar to that contained in section 2 in that provision is made that after 20 years’ user of light the right is deemed absolute and indefeasible unless the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.  It is clear from the authorities that this positive wording means that there is no requirement for the presumption of grant or the fiction of a licence having been obtained from the servient owner (see Tapling v Jones (1865) 11 HLC 290 at pp. 304, 308).  Thus, it has been held at first instance that a right to light may be acquired under the 1832 Act against a corporation in circumstances where that body had no power of grant (see Jordeson v Sutton, Southcoates and Drypool Gas Co [1898] 2 Ch.614 at p.626, affirmed [1899] 2 Ch 217) where Tapling v Jones was cited; see also Dalton v Angus & Co (1881) LR6 App Cas 740 at p.800).

33.	The argument promoted in this case by the Applicants is that by analogy with the provisions of section 3 the 40 years’ user of a right of way under section 2 of the 1832 Act makes the right absolute and indefeasible notwithstanding the fact that the Conservators, as the servient owners, may not have been competent to grant the right.  In short, it is submitted by the Applicants that in a case of 40 years’ user it is not open to the Conservators to defeat the claim by demonstrating incapacity during the period of 40 years, or any part thereof.  Support for this interpretation can be found in the case of Lemaitre v Davis (1881) 19 Ch D 281 at p 291.  Further authority for this proposition can be found in Gale on Easements 17th Edition, paragraph 4.63, and also Megarry and Wade – the Law of Real Property, 6th Edition, at paragraph 18.160 where it is stated that the positive right conferred by the 1832 Act should require no presumption of a grant.  

34.	It is, however, to be noted that both the texts do accept that a contrary argument can be maintained based upon the decision of the House of Lords in the case of the Proprietors of the Staffordshire and Worcestershire Canal Navigation v Birmingham Canal Navigations (1866) LR 1 HL 254 at pp. 268, 278.  This case considered a claim to an easement to a right to water by prescription under section 2 of the 1832 Act based on 40 years user. It is a case which is somewhat complex to interpret. 

35.	There the Respondents were a canal company who, as the servient owner, had no power to grant easements under the relevant statute. It was claimed by the Appellants that the right sought was rendered absolute and indefeasible by virtue of 40 years’ user. Reliance was placed, inter alia, upon the case of Tapling v Jones (ibid) in support of this proposition. It was submitted that the incapacity of the grantor was therefore immaterial (p. 60).  The Respondents, for their part, argued that as they had no power to grant the right in the first place, the acts amounting to user could not have arisen by prescription (p. 62).   

36.	Lord Chelmsford stated at page 268:

“To impose such a servitude upon the water in their canal as that contended for by the Appellants would have been ultra vires of the Respondents, and consequently length of user could never confer an indefeasible claim upon the Appellants under the Prescription Act, as no grant of the use of the water could have been lawfully made by the Respondents.”

	Lord Westbury stated at page 278:

 “But if the Prescription Act had been at all applicable it would be incumbent on the Appellant to prove that the right founded on the claim by user might, at the beginning of, or during that user, have been lawfully granted to them by the Respondents’ company.  No such proposition can be maintained.  Had any grant been made at any time by the Respondents’ company of the right, now alleged by the Appellants to have been acquired against them by user, such grant would have been ultra vires and void, as amounting to a contract by the Respondents not to perform their duty by improving their navigation, and conducting their undertaking with economy improvements.”

37.	As a question of principle, therefore, it would appear to be the case (despite dicta to the contrary insofar as the easement of light is concerned) that in the case of 40 years’ user the right of way contended for by the Applicants over the Strip cannot have been acquired by prescription pursuant to the provisions of section 2 of the 1832 Act by reason of the fact that the Conservators, as purported servient owners, were and are incapable grantors. I am fortified in this interpretation by the opening words of section 2 which pre-supposes a lawful claim being made at common law. No such words appear in section 3 the basis of which does not appear to rest upon the fiction of deemed consent or grant but relies upon user only.  

38.	Accordingly, although it has not been an easy matter to determine, I find that the Applicants’ submission that they have acquired a right of way by prescription over the Strip on the basis of 40 years’ user has not been made out.

OTHER ISSUES 
Lost Modern Grant
39.	Although I was not addressed on this point in terms, I consider that it is necessary briefly to refer to this concept. Had the Applicants in support of their case addressed me on this I would have rejected such a submission.

40.	This concept has historically been devised as judge-made fiction to avoid the considerable weaknesses of prescription at common law. In effect it is a means of plugging the holes.  The leading case on the subject is Dalton v Angus & Co (ibid).  As to that case I should state in passing that I reject the contention made by the Applicants that this case is authority for the proposition that section 2 of the 1832 Act entitles an easement to be acquired even where there is incapacity on the part of the grantor. The same considerations arise as those appertaining to prescription whether at common law or pursuant to the provisions of section 2 of the 1832 Act as to the capacity of the grantor.  It is a good defence to a claim under the doctrine of Lost Modern Grant that during the entire period when the grant could have been made there was nobody who could lawfully have made it (see Neaverson v Peterborough RDC [1902] 1 Ch 557; Tehidy Minerals Ltd v Norman [1971] 2 QB 528 at p 552).  In Neaverson v Peterborough RDC it was held that a lost grant cannot be presumed where such a grant would have been in contravention of a statute (at p.573).  In Hulley v Silversprings Bleaching and Dying Co Ltd [1922] 2 Ch 268 at p. 282 it was held (following Neaverson) that:

“a lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail.” 

            Estoppel
41.	No submissions were made by the Applicants as to the doctrine of estoppel, although at the end of the case I raised the issue.  I therefore do not propose to analyse the doctrine in the context of this case other than to say that any relevance would arise in the context of equitable licences or licences by estoppel.  It is doubtful that any estoppel licence can be treated as an equitable property right.  In the context of the present case any submission which could have been made by the Applicants as to an estoppel licence would arise in the context of the fact that the Conservators have, in effect, undertaken to allow the Applicants to use the Strip and have stated that they have no intention of withdrawing that licence or permission.  These circumstances of the case cannot, in my judgment, give rise to any proprietary interest in favour of the Applicants.  

42.	If any point had been raised to the effect that the Applicants hold an equity amounting to an equitable easement or producing a result similar to an easement over the Strip, then the equity would have been barred as a result of the same lack of capacity on the part of the Conservators (see West Middlesex Golf Club Ltd v Ealing LBC) [1993] 68 P & CR 461 at p.485.  By analogy with the cases cited in relation to the capacity of the grantor (above) the position must be similar in that any such rights acquired would have to be lawfully granted by the owner of the servient tenement (and see generally Bakewell Management Limited v Brandwood [2004] 2 AC 519 overruling Hanning v Top Deck Travel Group Limited (1993) 68 P & C R 14).  

Grant of Easement in favour of No 6 Southside
43.	The Applicants have referred to a declaration made in the Queen’s Bench Division of the High Court on 18th February 1966 made in apparent proceedings bearing a 1960 case number between a Mr Whitehead, the then owner of number 6 Southside, and the Conservators.  It is submitted that this indicates that the Conservators recognised in an historical context that they were competent grantors and thus able to grant a right of way over a part of the Common and demonstrates an historical precedent for the granting easements.

44.	I agree with Counsel for the Conservators that this document does not in fact demonstrate any such precedent.  The terms of the declaration do not in fact refer to the Common.  The document is a form of consent order which contains a declaration of a way over a footpath and verge to number 6 Southside, it may well be that this verge never formed part of the Common. It is impossible to ascertain the circumstances of this case from the material before me.  It can be seen, however, from the copy map contained in Bundle 2 upon which the land forming part of the Common has been superimposed (Tab 1 page 26 and Tab 3, page 45) that the verge in question did not form part of the Common at the date of the enactment of the 1871 Act.  The Conservators for their part have no record of this case and the Applicants are unable themselves to provide any explanation as to the background to it, or the circumstances in which the consent order came to be made.  

45.	In such circumstances, I find that this point does not take the matter any further.

The decision in Blacker v the Conservators
46.	Contained in the Applicants’ Bundle is the decision in the case of Blacker v The Conservators in Kingston-upon-Thames County Court dated 4th November 2004.  This was a decision in which Counsel for the Conservators in the present case also appeared.  It was concerned with a claim to enfranchisement made by Mr Blacker under the provisions of the Leasehold Reform Act 1967 (as amended) (“the 1967 Act”) in respect of certain property the freehold of which was owned by the Conservators.  The Conservators defended this claim on the basis of their inability to dispose of any part of the Common under Section 35 of the 1871 Act. This defence was rejected by the judge on the ground that the provisions of section 35 of the 1881 Act did not preclude an enfranchisement under the 1967 Act.  The 1967 Act was drafted in general terms which as a matter of policy required enfranchisement notwithstanding the terms of any earlier statute. The restriction in section 35 of the 1871 Act applies to voluntary disposals and does not prevail against the statutory right to enfranchise which prevailed. In short the 1967 Act made lawful that which had previously been unlawful. 

47.	he Applicants refer to this decision as providing the basis, as I understand it, for the general proposition that it had altered the Conservators’ powers under the 1871 Act. In particular it established that the provisions of Section 35 “only apply to voluntary dispositions but does not preclude a disposal by operation of law”. 

48.	If I understand this submission correctly the Applicants are contending that decision is authority for the proposition that by operation of law the conservators are bound to grant easements despite the express wording of the section. I consider that this submission in fact misses the point of the case. This is a decision where an expropriatory statute had been passed which, in effect, overrides the provisions of earlier law rendering lawful what had previously been unlawful thereby enabling a tenant to enfranchise his tenancy into a freehold interest.  In my judgment this cannot be authority for the general proposition that the Conservators are thereby required to grant easements in circumstances where the specific terms of Section 35 as to a voluntary disposal of an interest, and any prohibition on such a disposal, have not been amended by subsequent legislation.  There is no statute enacted parallel to the 1967 Act requiring the grant of easements after the 1871 Act nor, as I have stated above, has there being any legislation enacted repealing or amending the provisions of Section 35 of the 1871 Act. The Applicants’ contention also does not provide the answer to the question of the Conservators’ incapacity to which I have made reference above.

49.	I accordingly reject this submission. 

Private carriageway for the frontagers until 1952 or thereabouts
50.	As stated in paragraph 7, above, it seems to be the Applicants’ case that there was an alternative private vehicular access used by the frontagers to the properties bordering on Southside Common, including the Property in question, until about 1952. I was shown various copy photographs in apparent support of this proposition (see page 113 of bundle 2). I have to say that the evidence does not bear this out. These photos seem to indicate that both in 1920 and 2002 this access was a footpath only. The relevant part of the Deposited Plans also bears this out.

51.	I accordingly also reject this submission.

No consent or agreement to use the Strip
52.	Finally, the Applicants submit that there has been no previous consent granted or agreement made by the Conservators in effect granting permission to use the Strip. In fact in Bundle 2 page 114 there is included a copy of a letter dated 4th August 1982 sent to the predecessor in title to the Applicants (a Miss Calverley) which appears to indicate that consent was indeed granted to her on her acceptance of its terms.  The letter appears to bear her signature and seems to be dated 11th August 1984 or possibly 1987.  

53.	Although there is some evidence that there was an agreement made between Miss Calverley and the Conservators I do not accept that it is sufficiently compelling for me to state with certainty that there was any such agreement.  The evidence is in the form of a poor quality photocopy apparently bearing her signature.  There is no independent verification of to the signature or date. I do not therefore consider that it is sufficiently reliable in itself to provide the essential basis for arguing that the Applicants lack the ability to prove one of the central ingredients of their case, as is contended for by the Conservators. 

THE DECISION
54.	Accordingly, for all the reasons set out above (save for the submissions by the Conservators as to consent having been granted or an agreement made in paragraphs 48 and 49) I reject the Applicants’ case for the registration of the benefit of a private right of way with or without vehicles over the Strip as being appurtenant to the Property.

55. 	I shall therefore make the appropriate direction to the Registrar to cancel the original application dated 12th September 2003.

Dated this     day of August 2006

By Order of The Adjudicator to HM Land Registry