Herrmann & Anor v The Royal Borough of Kensington & Chelsea & Anor

Herrmann & Anor v The Royal Borough of Kensington & Chelsea & Anor

The claimants are not entitled to garden right under section 51 of the Kensington Improvement Act 1851 because No. 37 Ovington Square does not have its front or side facing the Square as required by the Act. The statutory language, context, and consistent historical practice limit garden right to properties facing the open square, and the claimants' property does not meet this criterion.

Parties
Claimant: Jeffrey Warren Herrmann; Claimant: Mina Gerowin Herrmann; First Defendant: The Royal Borough of Kensington & Chelsea; Second Defendant: Michael Wainwright (as Treasurer for the time being of Ovington Square Garden Committee)
Jurisdiction
England and Wales
Judgment Date
09 July 2010
Procedural Posture
Civil / Judgment After Trial
Outcome
Claim dismissed
Legal Topics
Statutory Interpretation, Easements, Nuisance, Garden Squares, Local Acts
Property Law Local Government Law Statutory Interpretation Easements Nuisance Garden Squares Local Acts

Case Brief

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Parties

Jeffrey Warren Herrmann

Claimant

Mina Gerowin Herrmann

Claimant

The Royal Borough of Kensington & Chelsea

First Defendant

Michael Wainwright (as Treasurer for the time being of Ovington Square Garden Committee)

Second Defendant

Procedural Posture

Civil / Judgment After Trial

Legal Issues

  1. 1 Whether the claimants, as owners and occupiers of 37 Ovington Square, are entitled to a statutory 'garden right' of access to Ovington Square Garden under section 51 of the Kensington Improvement Act 1851.
  2. 2 Whether the refusal to provide a key to the Garden by the Ovington Square Garden Committee amounts to actionable nuisance.

Ratio Decidendi

The claimants are not entitled to garden right under section 51 of the Kensington Improvement Act 1851 because No. 37 Ovington Square does not have its front or side facing the Square as required by the Act. The statutory language, context, and consistent historical practice limit garden right to properties facing the open square, and the claimants' property does not meet this criterion.

Court Disposition

Claim dismissed

Orders

  • Declaration refused that claimants have garden right over Ovington Square Garden
  • Claim for damages in nuisance dismissed