Mulvaney v Gough [2003] 4 All ER 83

• The owners of various cottages (Plaintiff) had used a plot of land (belonging to Defendant), adjacent to the cottages as a communal garden. Defendant decided to gravel path the garden, destroying flower beds planted and maintained by Plaintiff.

• The Court of Appeal held that the use as a communal garden could and did constitute an easement over the plot of land, and by destroying the flower beds Defendant had interfered with Plaintiff’s right and had to compensate.

• However, the easement did not exclude Plaintiff from changing the gardens and he was entitled to gravel path over it, provided he did not interfere with Plaintiff’s right to use the gardens. 

Latham LJ

• The easement merely restricted Defendant’s use of the gardens only to the extent necessary to ensure that the gardens could still be enjoyed by the dominant owners (i.e. Plaintiff).

• In reality, the easement prevents Defendant from substantially changing the character of the area so that it would no longer be communal gardens.