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Gardens

An easement giving a right to use a communal garden is capable of being acquired by prescription or under s62. The fact that it was not as easy to define the extent of the easement as it would have been in the case of an express grant did not mean that an easement could not be found to be in existence. A declaration was granted stating that the easement was for "recreational and amenity purposes". The court made a declaration that:
    The Claimant is entitled to a right to use the blue land as a communal garden for recreational and amenity purposes.
That declaration would not necessarily prevent all works on the land. The declaration would require the owners of the land to carry out any such works
    .. in a way that will substantially maintain its character as a communal garden for recreational and amenity purposes. And this will require them to demonstrate that any proposed work would maintain that character, and, in practice, the work is likely to require prior consultation, and, preferably agreement, if it is not to amount to a significant interference with the respondents rights. (Latham LJ at paras 26 and 27).
Mulvaney v Gough [2002] EWCA Civ 1078; [2002] 44 EG 175; [2003] 1 P&CR 16.

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