It centred on the fact that the War Office had used the land during World War II, and compensation was due to be paid to the neighbours (if correctly alleging a proprietary interest to use the land, namely an easement) or the landowner, the trustees of the original owner if they were the sole person(s) with an owning interest (under the Compensation Defence Act 1939, section 2 (1)).

He determined that four criteria for defining an easement existed, taken from Dr. Geoffrey Cheshire's The Modern Law of Real Property.

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.

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.

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.

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.

[1] [...] The third of the questions embraced in Dr. Cheshire's fourth condition rests primarily on a proposition stated in Theobald's The Law of Land (1929) at page 263, where it is said that an easement "must be a right of utility and benefit and not one of mere recreation and amusement."

The second of these cases was concerned with a right of support, and appears only to be relevant for present purposes on account of an intervention in the course of the argument on the part of Chief Baron Pollock and Baron Bramwell at page 593 of the Report, in which it was suggested that one who had for a long period played rackets against the wall of a neighbour would have a right not to have the wall pulled down.