England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (MR NICHOLAS WARREN QC)

		Royal Courts of Justice Strand London WC2
		Thursday 28th June 2001

1. LORD JUSTICE TUCKEY: Albert Road in Sutton is an unadopted dirt road which now belongs to the appellant, Mr Batchelor. The public right of way over this road does not however extend to its whole width. The appeal concerns an L-shaped strip of land to the south and west of the public highway, effectively its verge. This land is shown marked pink on the large scale plan which we have been given.

2. Mr Nicholas Warren QC, sitting as a Deputy High Court Judge in the Chancery Division, held that the respondents, who run a nearby garage business, had acquired an exclusive prescriptive right to park up to six cars on the pink land between 8.30 am and 6.00 pm Monday to Friday. The appellant contends, firstly, that such a right is not capable of being a valid easement and in any event that the judge's findings of fact did not justify the conclusion that such a right had been acquired. We have only heard argument on the first point.

3. It is common ground that only six cars can be parked on the pink land. If the respondents' right to park in this way is upheld the adjoining land, which does not belong to the appellant, will probably not be able to be developed since the present planning permission for its development requires the pink land to be used as a small roundabout or turning circle in connection with the development.

4. In the proceedings the respondents asserted rights to park and store cars on the pink land and other parts of the appellant's land along Albert Road. It was common ground that a right to park could exist as an easement but there was some argument before the judge as to whether such a right could be acquired by prescription. The judge stated his conclusion about this as follows:

   "...obviously the evidence has to establish the right claimed: there may be difficulties in establishing a prescriptive easement of a detailed nature which could be created by express grant...

   However...if the evidence does establish use which is consistent and only consistent with a right which, if it had been expressly granted, would have been capable of subsisting as an easement, the court should recognise that right as capable of being established by prescription."

5. This conclusion is not challenged, although Miss Williamson, for the appellant, argues that when one comes to consider whether the right asserted was capable of being an easement it was relevant to take account of the fact that it had been acquired by prescription. Thus she submitted a clear distinction should be drawn between cases where there was an express grant over land designated and/or laid out for parking and cases where the right had been acquired by prescription and therefore without the actual consent of the owner of the servient tenant and over land which had not been so designated or laid out.

6. For the purpose of this case I do not think it is necessary to decide whether Miss Williamson is right about this. I shall proceed on the assumption that there is no difference between the two situations for the simple reason that once the right is established the route by which that has been done does not matter.

7. In dealing with the point at issue on this appeal the judge simply said:

   "I consider that the exclusive right to park six cars during normal business hours on Mondays to Fridays in connection with the business carried on [by the respondents] is capable of subsisting as an easement... In my judgment, such a right, being limited as it is in time, does not, as a matter of degree, amount to such exclusion of the Claimant and his predecessors in title as to preclude it subsisting as an easement."

8. Earlier in his judgment he referred to the authorities and accepted that the question he had to answer was one of degree. This followed the approach adopted by Judge Paul Baker QC in Blenheim Estates v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 who, after reviewing the earlier authorities on car parking, said at page 1288:

   "The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant."

9. It was common ground before us that that was the essential question in this case and that there was no authority which provided the answer to it.

10. The underlying principle is set out in paragraph 1-52 of the 16th Edition of Gale which says:

    "An easement...involves a diminution of natural rights of ownership, and a grant under which the proprietary rights of the so-called servient owner are either shared or usurped cannot create an easement. For instance, 'no man can be considered to have a right of property, worth holding, in a soil over which the whole world has the privilege to walk and disport itself at pleasure'. The line is difficult to draw, and each new case would probably be decided on its own facts in the light of common sense."

11. The authority for this proposition is cited as Dyce v Hay where in 1852 the House of Lords said:

    "There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected."

12. That case was referred to by Upjohn J in the well-known case of Copeland v Greenhalf (1952) 1 Ch. 488 about which considerable argument was addressed to us. Miss Williamson relied on it because she said the facts were similar to those in our case and the judge had held that the rights asserted were not capable of being easements because they would deprive the servient owner of any reasonable use of his land. Mr West, for the respondents, said that the facts were not similar and the judge only decided that the rights asserted were too uncertain to amount to an easement.

13. In view of the fact that the parties are agreed what the right question is and that the answer to it depends upon the facts of each case, I see no need to grapple with these arguments, other than to say that I think it is clear from his judgment that Upjohn J rejected the claim because the rights asserted were both uncertain and too extravagant.

14. Mr West referred us to the facts in Blenheim Estates and in Bilkus v London Borough of Redbridge [1968] 207 EG 803, in an attempt to demonstrate that the courts were prepared to uphold extravagant easements to park. I do not think however that these cases help. The nature of the right considered by the judge in Blenheim is not at all clear. In Bilkus the court had to construe the terms of a covenant given by the council to the claimant. It was not a case about easements at all, although the judge did characterise the covenant as an easement. I suspect that the covenant in that case fell within Judge Baker's category of "some larger or different grant".

15. After that short diversion I return to the question which has to be answered in this case. Does an exclusive right to park six cars for nine-and-a-half hours every day of the working week leave the appellant without any reasonable use of his land, whether for parking or anything else?

16. Miss Williamson emphasises the fact that the right asserted is exclusive of all others, including the appellant. Car parking over the whole of the land is highly intrusive because no other use can be made of it when cars are parked on it. In practice it prevents the appellant from making any use of his land and makes his ownership of it illusory. Not so, says Mr West. Mathematically the respondents only have use of the land for 47-and-a-half hours per week, whereas the appellant has 120-and-a-half hours. He suggests various uses which the appellant could make of the land. He could sell it to the respondents or charge them for using it outside business hours, if that is what they wanted. Outside those hours he could park on the land himself or charge others for doing so. He would be able to concrete over the surface of the land without interfering with the right.

17. I think these suggestions demonstrate the difficulties which Mr West faces. Sale to the respondents would amount to a recognition that the rights they asserted had given them in practice a beneficial interest and no doubt the price would reflect this fact. The appellant could of course park himself at night or the weekends but the commercial scope for getting others to pay for doing so must be very limited indeed. I cannot see how the appellant would benefit from concreting over the land, although this would certainly enhance the respondents' right.

18. If one asks the simple question: "Would the appellant have any reasonable use of the land for parking?" the answer, I think, must be "No". He has no use at all during the whole of the time that parking space is likely to be needed. But if one asks the question whether the appellant has any reasonable use of the land for any other purpose, the answer is even clearer. His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.

19. I therefore accept Miss Williamson's submissions on this aspect of the case. It follows that I do not think the right found to exist by the judge was capable of being an easement. In reaching this conclusion I am of course differing from the judge to whom I should pay tribute for his detailed and clear judgment in which he resolved a number of issues which are not the subject of this appeal. On the issue with which we are concerned, however, it does not seem to me from the passage which I have cited from his judgment that the judge fully realised the implications of his finding upon the appellant's right to make use of his own land. For these reasons I would allow this appeal.

20. LORD JUSTICE KAY: I agree.

21. LORD JUSTICE HENRY: I also agree.
    ORDER: Appeal allowed with costs; leave to appeal refused; stay granted pending application to the House of Lords. (Order does not form part of approved judgment)