England and Wales Land Registry Adjudicator

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URL: http://www.bailii.org/ew/cases/EWLandRA/2009/2005_0270.html
Cite as: [2009] EWLandRA 2005_0270, [2009] EWLandRA 2005_270

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REF/2005/0270

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN:

The Mayor and Burgesses of the London Borough of Tower Hamlets

APPLICANT

and

Alfred Barrett and Valerie Barrett

RESPONDENTS

Property Address: Land at Mile End Park, London

Title Number: EGL469907, EGL416904 & EGL441161

Before: Mr Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Procession House, 55 Ludgate Hill, London EC4M 7JW

On: Wednesday 14th and Thursday 15^th January 2009

Applicant Representation: Ms Michelle Stevens-Hoare, of Counsel, instructed by the Legal Department of the London Borough of Tower Hamlets

Respondent Representation Mr Timothy Sisley, of Counsel, instructed by Messrs Goldkorn Mathias Gentle, Solicitors

DECISION

___________________________________________________________________________

KEYWORDS: Former highways and the medium filum rule - acquisition of an easement for parking – Law of Property (Miscellaneous Provisions) Act 1989 s2 – Law of Property Act 1925 s62 – Local Government Act 1972, s 132(2A) - Local Government Organisation (Property) Order 1986 - Stopping-Up of Highways (London Borough of Tower Hamlets) (No. 4) Order 1983 - the Abercrombie Report 1944.

Cases referred to: Borman v Griffith [1930] 1 Ch 493; In re Basham (Deceased) [1986] 1WLR 1498;

THE APPLICATION

1. Pursuant to the Local Government Organisation (Property) Order 1986 (SI 1986/0148) the Applicant (“the Council”) is the statutory successor in title to the London County Council (“the LCC”) and the Greater London Council (“the GLC”). In that capacity the Council is the registered freehold proprietor of various properties adjoining Lessada Street, Palm Street, and Totty Street, London, E3 (“the Former Highways”) under Title Nos. LN164423, LN417115 and LN422074. These highways were stopped up pursuant to the Stopping-Up of Highways (London Borough of Tower Hamlets) (No. 4) Order 1983 made on 13^th July 1983. At the corner of two of the Former Highways, namely Lessada Street and Palm Street stands the Palm Tree Public House (“the Palm Tree”) the freehold title of which has been registered in the names of Alfred Barrett and Mrs Valerie Barratt (“the Respondents”) since 1993. Prior to that the Respondents held a leasehold interest in the Palm Tree, their landlords being Messrs Trumans.

2. By an application dated 22^ndApril 2004 in Form FR1 (“the Application”) the Council applied for first registration of the land shown edged red on the HM Land Registry Notice Plan (“the Plan”) dated 23^rd August 2004 (“the Disputed Land”). This has been given a pending Title No. EGL469907. The Disputed Land comprises one‑half of the Former Highways. The corresponding other half of the Former Highways (“the Other Half”) is now registered in the names of the Respondents under Title No. EGL441161. Both parcels now form what has been referred to in these proceedings as the “New Car Park”. The legal basis for the Application is the presumption raised by the usque ad medium filum viae rule (“the Presumption”). This is to the effect that the boundary line between adjoining owners is to drawn along the middle of the Former Highways on the basis, that in the absence of any evidence to the contrary, the owners of the land adjoining the Former Highways own the subsoil to the middle of the road and the airspace above the soil, subject to any rights of passage over the surface.

3. The Respondents originally objected to the Application on one or more of three separate grounds, namely:-

(1) that all or some part of the Disputed Land has been acquired by them by adverse possession;

(2) further, or alternatively, that the boundaries of the Disputed Land have been fixed by agreement; and

(3) further or alternatively, that the Council is estopped from denying the Respondents’ title to the Disputed Land.

Details of this objection are set out in a letter from the Respondents’ solicitors dated 15^th October 2004.

4. I should state that on 28^th May 2008 I conducted a site inspection in the presence of the parties and their solicitors. The hearing was originally fixed for the 29^th and 30^th May 2008, but the bulk of the time set down for the hearing was taken up by negotiations between the parties, which eventually came to nought. The hearing was then re-fixed for the 14^th and 15^th January 2009. As the case has a number of complications it is necessary to set out in some detail the background to the Application and the objections raised to that Application by the Respondents.

THE ISSUES

Preliminary aspects

5. The initial objection to the Application by the Respondents was on the basis that they had acquired the Disputed Land by adverse possession. That case has now been abandoned. This abandonment only occurred shortly before the hearing set for 29^th May 2008. Indeed in paragraph 1.2 of the original skeleton arguments (“the Respondents’ Skeleton Argument”) lodged for the hearing (referred to as “Statement for the Objectors”) the assertion is made that the Respondents acquired title by adverse possession or by proprietary estoppel, alternatively the registration should be subject to an exclusive easement in favour of the Respondents for parking vehicles on the Disputed Land. In an amended version of the Respondents’ Skeleton Argument produced for the hearing the words “by contract” were substituted for the words “adverse possession” in paragraph 1.2, and the section on adverse possession contained in paragraph 4 was deleted. I should state that in the context of the evidence provided during the hearing the assertion as to the acquisition of title by adverse possession had no foundation whatsoever. Thus, the contentions raised by the Respondents in opposition to the Application are, in effect, apparently limited to the acquisition of “title by contract” or proprietary estoppel, alternatively an exclusive easement. It must be said, however, Counsel for the Respondents embarked on a more wide-ranging journey of the legal principles. Thus in paragraph 5.5 of the Respondents’ Skeleton Argument there is also reference to a constructive trust this having been “conferred by contract” and which “shades into proprietary estoppel.” I shall refer again to these aspects, below.

6. In the original Statement of Case served by the Respondents no objection was taken to the Applicant being registered as the proprietor of the Disputed Land subject to the registration of two asserted easements. These were (1) an exclusive right to park on the Disputed Land for the benefit of the Palm Tree and an associated right of way (“the First Easement”), and (2) a pedestrian and vehicular right of way in order to gain access to the Other Half of the width of the former Lessanda Street and Palm Street adjoining the Palm Tree (“the Second Easement”). In their re‑amended Statement of Case there was a change in the nature of the Respondents’ case in that they thereafter disputed the operation of the Presumption in favour of the Council on the basis that it did not arise as there were no houses on the side of the road owned by the Applicants. That contention in has now also been abandoned.

7. The Respondents’ claim to the First Easement is on the following basis:-

(1) it arises from an enforceable contract acquired in 1980 or 1981 over a car park (referred to in these proceedings as the “Haverfield Road Car Park”) by their landlords, Trumans, which “became annexed” to the freehold and leasehold interests of Trumans and the Respondents in the Palm Tree, respectively. When the Respondents purchased the freehold interest in 1993 this interest “passed” to them by virtue of the provisions of section 62 of the Law of Property Act 1925 (“section 62”) and this exclusive “right” having been “relinquished” in 1992 was transferred by agreement to a new area for parking (of which the Disputed Land forms part) situate immediately next to the Palm Tree and referred to as the “New Car Park”; or

(2) the Applicant is estopped from denying the existence of the easement.

Insofar as the Second Easement is concerned, this apparently arises by prescription, although this principle does not expressly form part of the Respondents’ case.

8. The position of the Council insofar as these claims are concerned is as follows:-

(1) It has no objection to the operation of the Second Easement, although it is not accepted that it has arisen as a matter of law in the manner formulated on the evidence available during the course of the hearing;

(2) Insofar as the First Easement is concerned, the Council objects to the claimed acquisition. It accepts that it was the intention that the owners for the time being of the Palm Tree should have the ability to park on the Disputed Land and the Applicant’s Counsel was at pains to indicate that the Council have never sought to prevent any such parking. It is contended, however, that it has always been the intention that the Council and other appropriate authorised users of the Park would also have use of the Disputed Land and the Other Half for the purposes of parking vehicles. Any suggestion that the ability to park on the Disputed Land would be exclusive to the Respondents, or to the owners of the Palm Tree for the time being, so that the Council and those authorised by it could not park thereon, is therefore rejected.

9. Thus, the position of the Council as formulated by Counsel is that no right to park on the Disputed Land has arisen as a matter of law. The Council is, however, content to allow the Respondents and their licensees to park on the Disputed Land. It is, therefore, willing to formalise the grant of permission to the Respondents, and their patrons, to park there in common with the Applicant and those it authorises so to doinsofar as it is necessary for such persons to park thereon. In this regard I should state that the only practical issue in this case is whether or not the Respondents have in some way acquired an exclusive easement over the Disputed Land.

The formulated issues

10. The issues between the parties are, therefore, the following:-

(1) Is the Council entitled to be registered as the freehold proprietor of the Disputed Land upon the application of the Presumption, or can the Presumption been rebutted by the Respondents?

(2) If the Council is entitled to be registered as the freehold proprietor of the Disputed Land should such registration be subject to an easement in favour of the Respondents and their licensees for pedestrian and vehicular access for parking thereon on the basis that there is an enforceable contract for the grant of the First Easement?

(3) If so, does this give rise to an exclusive right to park? or

(4) Is the Council estopped from denying the existence of the First Easement?

(5) If so, does the equity give rise to an exclusive right to park?

THE BACKGROUND TO THE APPLICATION

Introduction

11. The Palm Tree, the Disputed Land, and the Other Half are situated within an open space known as Mile End Park (“the Park”). The historical development of this Park goes back as far as the Greater London Plan published in 1944 (otherwise known as the Abercrombie Report) which was designed to provide the basis for a comprehensive re‑development of London following the devastation caused by the Second World War. To this end it was proposed that there should be a park on the banks of the River Lea to provide what has been described as the “Green Lung of East London”. Originally it was the London County Council (“the LCC”) which was involved in the proposed scheme relating to the Park and then once the Greater London Council (“the GLC”) was formed in 1965 it was this body which became involved thereafter (until its demise in 1986), together with the Council. A comprehensive compulsory purchase scheme was initiated which involved the purchase of streets in the vicinity of the Palm Tree and elsewhere and which resulted in a large swathe of demolition in the area immediately surrounding the public house.

12. The root of title to the Former Highways is as follows: - on 11^thJuly 1951 the LCC was registered as the freehold proprietor of land and premises known as No. 22 Palm Street and on 28 November 1974 the GLC (being the successor to the LCC) was registered as the freehold proprietor of the land and premises known as Nos. 1 to 39 Palm Street. These properties abutted Lessanda Street, Palm Street and Totty Street, and in particular the Disputed Land. As I have stated above, these streets were stopped up in 1983. Eventually the buildings comprising Nos. 1 to 39 and No. 22 were demolished and the area was cleared and laid out as part of the Park.

13. Consideration was also given to the compulsory purchase of the Palm Tree with a view to its demolition and the inclusion of the site in the Park. In June 1977 the first Respondent was granted a tenancy of the Palm Tree from Messrs. Trumans. At that stage both Trumans and the Respondents sought to persuade the Council and the GLC, and also an organisation known as the King George’s Fields Charity Board (being an organisation responsible for the maintenance and management of King George’s Fields which forms part of the Park), to exclude the Palm Tree from the Park on the grounds that it would remain a viable enterprise. These representations were successful. The somewhat unusual result of this change of heart on the part of the Applicants and the GLC is that the Palm Tree is the only building left standing in a swathe of territory lying within southern end of the Park.

The 1980s

14. As the development of the Park progressed during the early 1980s the Council and the GLC were in discussions with Trumans in their capacity as the owners of the Palm Tree, and also as the Respondents’ landlord, with a view to resolving various matters relating to the operation of the Palm Tree and future arrangements for parking within the context of the new Park. It is an essential plank of the Council’s case that, although it is accepted that various understandings were reached between those parties at various stages, no formal or binding agreement was ever reached or entered into between them. I need to emphasise that at that stage although the Respondents may have played some part indirectly, or at least may have been informed of the content of these discussions between Trumans, the Council and the GLC, they were apparently not present at various meetings which have been referred to in the bundle prepared for the hearing (“the Bundle”) between representatives of the GLC and Trumans. Further it is to be noted from the documentation that there was an apparent lack of communication between the GLC and Trumans, and that the GLC would not accept a car park in the immediate vicinity of the Palm Tree. In this context it also must be remembered that the status of the first Respondent remained that of a tenant of the Palm Tree until they both purchased the freehold of the Palm Tree in July 1993.

15. Following these discussions and the grant of conditional planning permission in March 1981 the GLC in about 1982 constructed the Haverfield Road Car Park. This was capable of accommodating about 28 vehicles. The Stopping-Up Order was then made in July 1983 stopping up, inter alia, the whole of Palm Street and Lessada Street. The creation of the Haverfield Road Car Park was, in effect, the result of an acknowledgement by the GLC that the Palm Tree needed car parking facilities and planning permission was sought and obtained to this end. Thus it is the Council’s case that the patrons of the Palm Tree were permitted to use this car park together with the Council and its invitees and licensees using the Park facilities. It is an essential plank of the Council’s case that it was clearly understood by Trumans and the Respondents that this car parking provision in the Haverfield Road Car Park was for the joint use of all such persons and it was on that basis that the Council undertook responsibility for its management and security. Thus, as it is contended by the Council, it was never its intention nor that of Trumans, or the GLC, that the Palm Tree and its patrons should have exclusive use of the Haverfield Road Car Park.

16. In support of this assertion the Council relies upon the minutes of a meeting of the Recreation and Arts Department of the GLC held on 10^th January 1985 (at pages 162/164 of the Bundle) at which various matters were discussed insofar as the Park and the Palm Tree were concerned. At this meeting were representatives of Trumans and the GLC, but the Respondents were not present. Under Item 3 headed “Car‑Park (Existing) and Service Road” there is reference to improvements sought to the existing car park (i.e. the Haverfield Road Car Park) and service road. In the context of illegal parking the request was made by Trumans that steps should be taken to prevent local residents from using that car park and that it should be reserved for Park and Palm Tree users only. It was agreed, however, that the existing park management would patrol the car‑park and liaise with the Respondents.

17. Further, under the heading “New Car-Park” it is recorded, inter alia, as follows:-

“… Trumans asked that the number of car-parking spaces be increased to allow for both Palm Tree and Park users. Mr Sheridan [of the Valuation and Estates Department] felt that the car-park would undoubtedly be used solely by Palm Tree users, and that therefore perhaps the car‑park should be Trumans responsibility. Trumans disagreed, stating that it would be for general park/canal side use.”

As the minutes also reveal, it was then agreed that (1) Trumans would not have exclusive use of the new car park, and (2) the car‑parking space provision would be reviewed if necessary. In a letter dated 30^th April 1985 (at page 167 of the Bundle) Trumans wrote to the GLC in response to a letter dated 29^th March 1985 (which has not been reproduced) agreeing to recommend certain terms to its Board which included “additional car parking”. One can only speculate as to these terms but it is to be presumed that these terms related to the proposed new car park which had been apparently “promised” to the second Respondent (see the memorandum dated 4^th December 1986 at page 169).

18. The documentation (see the minutes of a meeting held on 9^th February 1987 at pages 170/172 of the Bundle) then goes on to demonstrate that by February 1987 the Haverfield Road Car Park was considered to be unsatisfactory for two principal reasons. First, the vulnerability of vehicles which were being damaged by vandals and thefts which was accentuated by its sunken nature and screening by plants; and secondly its distance from the Palm Tree and related inconvenience for the patrons during bad weather. Under the heading “Car Parking” at page 170 it is state, inter alia, as follows:-

“Trumans have requested that parking facilities be allowed nearer to the Pub. Although a small number of parking spaces may not significantly damage the amenity of the Park at that point, officers consider that it would be unacceptable to develop major parking facilities which would attract traffic across the Park.”

It is also to be noted in that document that the point was made that the Haverfield Road Car Park was intended to serve both the Palm Tree and Park users

19. At that stage therefore, although there was an apparent problem with the Haverfield Road Car Park generated by illegal parking and theft together with its use by local residents, the main problem appears to have been that its proximity to the Palm Tree was somewhat remote and caused inconvenience to the patrons of the public house particularly in bad weather. Trumans (and the Respondents) were therefore keen on having parking facilities closer to the Palm Tree.

Events of 1992 and thereafter

20. Mr Patrick Harrison, one of the Council’s planning officers since 1988, at some stage, and probably in about 1992, met with the Respondents to discuss, among other matters, the establishment of a new car park in the vicinity of the Palm Tree. Mr Harrison gave evidence and was cross‑examined at some length. As various matters are in contention I do not propose at this stage to go into the detail of the discussions at the meeting, or whether or not any agreement was reached between Mr Harrison and the Respondents, and in particular the first Respondent. On 11^th August 1992, however, by a deemed planning permission the Council resolved to carry out certain development described in the schedule to the permission (see pages 175/182 of the Bundle). The development is described as the “creation of replacement park road layout, additional parking for the Public House and the removal of existing roads” which involved the Disputed Land The plan attached to the deemed planning permission (at page 180) contains the following words “existing Car Park to be extended – dotted line indicates original area. [New Cark Park] surface in Tarmac to match existing. Bays to be marked with white lines.” I should state that nowhere in this document does it record that the Respondents and/or the patrons of the Palm Tree were to have exclusive views of the New Car Park.

21. In 1992 in accordance with the planning permission the Council duly created a new access road and the New Car Park at its own expense by surfacing the Disputed Land and the Other Half. As the Haverfield Road Car Park was no longer in use the area formerly occupied by it was then grassed over. This resulted in the Disputed Land and the Other Half thereafter forming a large “L” shaped car parking area on the east and south sides of the Palm Tree. At the northern end of this area a Park footpath runs into it, and at the southern end it is served by the new access road.

22. Of some contention in the case is the provenance of a letter dated 4^th May 1993 (at page 184 of the Bundle). I shall refer to the circumstances of the production of this letter in more detail below and it was the subject of oral evidence, but suffice it to say that (although the date at one stage appeared to be in contention) it is not disputed that the draft was provided by Mr Harrison to the Respondents during the course of a meeting held in May 1993 between him and the second Respondent and it was apparently signed by the second Respondent and handed to Mr Harrison who then passed it on to the Bow Neighbourhood Centre of the Council as part of the submission for planning purposes. The signed copy of this letter has not been retained. The aspect which is in contention is that the expressed terms of this letter do not record the assertion that the Respondents and their patrons would have exclusive use of the New Car‑Park. At one stage the date of the letter also appeared to be in contention.

23. Also in contention are the circumstances surrounding an undated handwritten letter emanating from the second Respondent, again to Mr Harrison, in which she apparently agreed to the proposed closure of the existing access road to the Palm Tree and also agreed to the proposed new road system. The question is also posed in this letter that if the Respondents were to give up the Haverfield Road Car Park would the Council “square off” the Palm Tree forecourt so as to enable customers to park their cars closer to the Palm Tree in order to make things more secure. Two considerations arise in relation to this letter, namely, first, whether it preceded the May 1993 meeting between Mr Harrison and the Respondents at which the draft letter on page 184 of the Bundle was produced, signed and handed back to him; and secondly, although reference is made to giving up “my 28 space car park” nowhere is it recorded by the second Respondent in terms that the Respondents at that stage were seeking, or were under the impression that they were to have, exclusive use of the New Car Park.

24. Thereafter, on 21^st July 1993 the Respondents purchased the freehold and leasehold interests of the Palm Tree from the successors in title to Trumans the effect of which was that there was a merger of the leasehold and freehold interests. I should state that the agreement makes no reference to any parking provision in the vicinity of the Palm Tree – there being no express term agreed between Trumans and the Respondents to this effect. Also the Council was not a party to the agreement for sale. Thereafter on the 8^th December 1993 the Respondents were registered at HM Land Registry as the freehold proprietors of the Palm Tree under Title No. EGL416904.

The Dispute

25. Until about late 1998 there would appear to have been no difficulty between the parties over the use of the Disputed Land and the New Car Park. It is the Council’s case that from its perspective the New Car Park was utilised primarily by the Council’s employees visiting the Park and an ecology unit situate within it together with disabled Park users and mothers with children. It is, however, accepted by the Council that the use by the Respondents and the patrons of the Palm Tree was undoubtedly greater. Contained in the Bundle (at page 205) is an internal memorandum of the Council dated 11^th December 1998 where reference is made to an “informal dispute” over the status of the New Car Park. In the fourth paragraph it is stated in the following terms –

“Apparently, the licensee believes that the facility is there solely for the benefit of his patrons whilst former colleagues from the old Bow Neighbourhood assure me that it was provided by the Council for use by visitors to the Park.”

Reference is made then to whether the Palm Tree would have inherited any of the Former Highways under the Presumption. In the following memorandum dated 5^th January 1999 (at page 207 of Bundle) the response is given by Mr Black of Highways Development to the effect that the Presumption operated so as to enable the Palm Tree to claim half the width of the former adjoining highways, but that insofar as the New Car Park was concerned he was informed that the area was provided for customer parking for the Public House having regard to the planning permission.

26. In early August 1999 two signs appeared at the entrance of the New Car‑Park which stated as follows “Palm Tree Car Park No Unauthorised Parking.” It is contended by the Council that these signs were erected by the Respondents, but this is denied. These signs then brought protests from Miss Joanne Todd who is a nearby resident, and also a Council employee. She protested that the erection of these signs which, as she put it were “outrageous and illegal”. These signs were apparently erected by Fitzpatrick, who were the contractors on site at the time but at whose instigation is in contention. There was subsequent correspondence from the local Residents Association in August 2000 who continued to protest at the continued existence of these signs.

27. In the Bundle there also appear two file notes dated 4^thFebruary 2000 and 17^th April 2000 (at pages 222/223, and 235). The first of these is the note of a meeting held to discuss the Respondents’ assertions as to the New Car park and quotes the Respondents as follows:-

“When this [the Haverfield Road Car Park] was removed as part of an earlier refurbishment of the Park, they were promised exclusive use of the entire Car Park immediately to the front of the pub.”

The second memorandum refers to a call made by the second Respondent during which she sought clarification of the position. She apparently asserted that the Council intended to “pass [the] freehold in “…our strip of car park (and hardstanding) to her….” Following this the Council received an undated letter on 28^th July 2000 (at page 240) from the Respondents in which it is asserted that:-

“most of the car parking area around our property belongs to us but the remainder the Council agreed on extending for us in exchange for the [Haverfield Road Car Park] is still to be formally documented by the Council in our name. Everything seemed to be straightforward and agreed back in 1993 and we have never been told of any problems and must ask that you complete this transaction in the very near future for all our records to be correct.”

28. Thereafter, on 1^st September 2000 (at pages 243/246 of the Bundle) the Council wrote to the Respondents in substantive terms. After having reviewed the history of the development of the area and the fact that the Former Highways were public roads and that no lease had been granted to Trumans over the Haverfield Road Car Park, it is stated that the former Bow Neighbourhood Officers involved in the matter at the time were unanimous in saying that joint use was intended over the New Car Park. It is asserted that there was no written agreement or correspondence to the contrary. It was also stated that the transfer of land in public ownership was strictly controlled and could not be effected without proper authority given by the Council and with the consent of the Secretary of State for the Environment. It is also stated that the Respondents had produced no valid evidence of a transfer in law or equity or a valid claim for adverse possession.

29. Finally, on 12^th July 2000 the Respondents registered their freehold interest in the Former Highways immediately adjoining the Palm Tree on the basis of the application of the Presumption. Such registration was not objected to by the Council. In 2003 the Respondents erected new signs to the effect that they were claiming exclusivity of the whole of the New Car Park including the Disputed Land. Thereafter on 22^nd April 2004 the Respondents made the Application the subject of these proceedings. It is thus against this background that the Council has applied to register its title to the Disputed Land on the basis of the Presumption.

THE EVIDENCE

The Council’s Evidence

30. The principal witness for the Council was Mr Patrick Harrison who has been employed by the Council as a planning officer from August 1988 to January 2004. He produced two witness statements respectively dated 20^th April 2006 and 21^st May 2008. As he said during the course of his evidence he was closely involved with the development and laying out of the Park, originally started by the GLC. He therefore had direct involvement with Councillors and other officers in the project management for the completion of the Park which included concerns about car parking for the Palm Tree.

31. Mr Harrison said that he became aware of Respondents when they expressed concern about parking facilities besides the Palm Tree and Haverfield Road together with their rights to parking and access to the Public House. In May 1993 he met with the Respondents (he was certain that this did not occur in 1992 as was contended by the Respondents) to discuss with them the laying out of the proposed New Car Park which included the Disputed Land. Mr Harrison was certain that the proposal on foot at the time was to provide parking facilities at the Palm Tree for its patrons, park users and Council employees and that was his understanding at the time. He said that there was no agreement, promise or representation made by him that the Respondents, and the patrons of the Palm Tree, would have exclusive use of the New Car Park. In any event, as he pointed out, he could not bind the Council by anything he said, and there was a particularly strong-minded Councillor involved in the Park project at that time (Councillor Flounders). It was in this context that Mr Harrison drafted the letter dated 4 May 1993 (at page 184 of the Bundle), which was signed by the second Respondent and then taken by him back to his office. As he said during the course of his evidence, it was a “memorable occasion” as he was “under instructions” from Councillor Flounders who was a “memorable person” who took his own views very seriously. He said that the Respondents, and in particular the second Respondent agreed to the proposal that the New Car Park would be for joint use, and that her recollection to the contrary was incorrect. Thus the New Car Park was laid out on the basis of shared use.

Mr Bryan Jones

32. Since March 1986 Mr Jones has had extensive experience as an officer of the Council in various planning roles. He is now the Service Head for Environmental Services. He relied upon a witness statement dated 19^th May 2008. He was closely involved in the development of the Park and in such capacity had close connections with the Councillors and Officers of the Council. He said that he was certain that at no time was it agreed that the Respondents would be given the Disputed Land or was it intended that they should have exclusive rights over it. During the course of his evidence he referred to the minutes of the meeting dated 10^th January 1985 (see page 162/164 of the Bundle) and that it was clear that any future use of the New Car Park, and in particular the Disputed Land, was to be shared, and he had no doubt about this.

Mr Michael Rowan

33. Mr Rowan’s evidence related to the presence of signs stating that the New Car Park was for the use of the Palm Tree patrons only. He said that these should be taken down as they gave the wrong impression.

The Respondents’ Evidence

The second Respondent

34. The second Respondent gave evidence and relied upon three witness statements provided for the hearing. They are dated respectively the 6^th November 2007, the 27^th April 2008, and the 23^rd May 2008. The second witness statement in fact seems to have been provided by her to this Office without reference to her solicitors. Her husband, the first Respondent supported her evidence and was tendered for cross-examination.

35. In her first witness statement, the second Respondent asserts that by 1981 “some agreement” had been reached between all the three parties namely the GLC, the Applicant and Trumans. She contended that this agreement then gave rise to the construction of the Haverfield Road Car Park over which the Respondents said in their evidence that they had an exclusive right to park. Had she believed that the use of the New Car Park was to be shared when Mr Harrison came to see her and produced the typewritten letter she never would have signed it. She was of the view that this meeting took place some time before July 1992, and not May 1993 being the date at the head of the letter (at page 184 of the Bundle). I should state that the second Respondent, however, during her evidence did manifest some confusion over whether or not she did sign the letter of May 1993, but she was prepared to accept that it was her signature.

36. The second Respondent stated in her evidence that if they had been made aware that there was no right to exclusive parking they would have acted differently in that they would have kept the Haverfield Road Car Park, and would have objected to the new road layout and to the extension of the “forecourt” at the Palm Tree. She also stated they would not have purchased the Public House in 1993 if they had known. She also contended that for more than 20 years no-one has ever suggested anything other than the use of the car parks (i.e. the Haverfield Road Car Park and the New Car Park) was anything other than for the exclusive use of the Palm Tree and its patrons. As the stated during the course of cross‑examination, she had always taken it as an exclusive right over their “forecourt” and that the phrase “parking for the Palm Tree” meant that it was exclusive to them. Her agreement to the new road network and the creation of a New Car Park was dependent upon giving up the Haverfield Road Car Park. She was, however, unable to indicate any document in the Bundle where it was stated that her use of either the Haverfield Road Car Park or the New Car Park was exclusive. Her answer to this was that in reality the New Car Park, and in particular the Disputed Land, was for exclusive use of the Palm Tree.

37. The second Respondent also asserted that the erection of signs indicating that the Palm Tree had exclusive use of the New Car Park were not erected by her or her husband – it was the contractor who erected the signs in 1992. In other words, it was not at the Respondents’ instigation.

38. In summary, the Second Respondent was insistent that the original 28 car parking spaces were for the exclusive use of the Palm Tree, and that in effect when that car park was given up and the New Car Park created over part of the Disputed Land her perceptions were that as this was the forecourt of the Public House such parking was also exclusive. In this context I should also state that the second Respondent said on more than one occasion that she considered that the Council had a duty to provide parking and in some way were obligated to the Respondents to enable their business to succeed.

Mr Paul Beasley

39. Mr Beasley was the leader of the Council for the period May 1974 to May 1984, then Deputy Mayor between 1984 and 1985, and Mayor from 1985 to 1986. He finally left the Council in May 1986. Mr Beasley provided a witness statement dated 29^th October 2007 and also gave evidence. As he said, he was very much involved with the proposed compulsory purchase order in order to develop the Park, and since he left the Council he still continued to maintain contact through a network of fellow Councillors and Officers some of whose names he provided. Such sources of information had indicated to him that there was to be exclusive use of the car parking facilities for the Palm Tree, and that signs that were erected were erected by the Council. He said that Mr Harrison was incorrect in stating that the New Car Park and the access thereto were other than serving the public house. He readily accepted, however, that this information was provided to him from third party sources and that he was not a party to the transactions in connection with the car parks. Further, he could not dispute the authenticity of the minutes of the meeting of the Recreation and Arts Department of the GLC held on 10^th January 1985 (at page 162 of the Bundle), and he acknowledged that he did not know the whole history of the circumstances relating to the car parking issue. He also accepted that after he left the Council in May 1986 his information was reliant upon being provided by others on, in effect, a hearsay basis. He also acknowledged that he did not speak to those directly involved such as Mr Harrison or Mr Jones, or to the Councillors. He stated that Councillor Flounders was a man of very strong views and could be described as a “bully” who would not have accepted as a matter of principle any exclusive use by the Respondents of the car parking facilities.

40. In short, although Mr Beasley may have had some direct knowledge of the circumstances up to May 1986, after that date his evidence was wholly reliant upon third party information from a number of sources. It cannot therefore have any real weight as to the factual circumstances after that date.

THE LEGAL PRINCIPLES

Contractual Easement

41. The claim to a contractual easement arises in paragraph 4.7 of the Respondents’ re‑amended statement of claim. It is to the effect that the second Respondent and Mr Harrison made an agreement whereby in exchange for the Respondents confirming in writing that they had no objection to the new road layout and surrendering their rights over the Haverfield Road Car Park, the Council agreed to extend the existing forecourt around the Palm Tree by creating the New Car Park over the Other Half and the Disputed Land. In order for that agreement to be effective it not only has to have sufficient oral and written evidence in support, but it also must be demonstrated that the Respondents had rights to release over that original car park. Further, the Respondents would also be required to demonstrate that such rights were exclusive.

42. It is also necessary for the Respondents to be able to demonstrate that any such agreement (being a disposition of an interest in land) was made pursuant to the provisions of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 in that it can only be made in writing and by incorporating all the terms which the parties have expressly agreed in one document.

Proprietary Estoppel

43. In the case of In re Basham (Deceased) ([1986] 1 WLR 1498 at page 1503) the doctrine was explained in the following terms:-

“… where one person, A has acted to his detriment on the face of a belief, which was known to or encouraged by another person, B, that he either has or is going to be given a right over B’s property, he cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief.”

If all the elements of proprietary estoppel are established an equity arises. Thus the Respondents are required to demonstrate a representation or action on the part of the Council’s Officers and binding upon the Council which encouraged in the Respondents a belief that they had or were to acquire an exclusive right over either car park. If there is sufficient evidence of this then an equity arises, but it should be remembered that this can only be used as a shield and not a sword.

Easements – the four essentials

44. (1) There must be a dominant and a servient tenement;

(2) an easement must accommodate the dominant tenement i.e. be connected with its enjoinment and for its benefit;

(3) the dominant and servient tenements must not be both owned and occupied by the same person;

(4) the easement must be capable of forming the subject‑matter of a grant.

Further, it can only exist as a legal interest in land capable of being registered against the servient owner’s title if it is -

(1) held for an interest equivalent to a fee simple absolute in possession or term of years absolute; and

(2) created either by statute, deed or prescription.

45. The simplest way to create an easement is by an express grant by deed or by reservation. Easements can, however, be the subject of an implied reservation or grant, and the provisions of section 62 of the Law of Property Act 1925 are relevant to the question of an implied grant. This provision applies to conveyances but does not apply to a mere contract e.g. for a lease for over three years (see Borman v. Griffith [1930] 1 Ch 493). It has the important effect of converting into full easements a licence or a right that was a custom to be exercised but the origin of which was unknown.

THE DECISION

46. I have some sympathy with the Respondents in their predicament. In particular I can see that from their perceptions they may have formed an understanding as to their use of the Haverfield Road Car Park which they considered had been, or should have been, translated across into their use of the Disputed Land as forming part of the New Car Park. As I mentioned above the Respondents’ case has been based on a number of different grounds, but the essential feature based upon the second Respondent’s evidence is that it is asserted that there was an agreement in 1992 whereby the exclusive rights which they had acquired over the Haverfield Road Car Park were surrendered, or exchanged, for new exclusive rights over the New Car Park. It is contended that such rights were contractual rights acquired by Trumans in about 1980 or 1981 which in some way became annexed both to the freehold and to the leasehold interest in favour of the Respondents, and somehow when the Respondents acquired the freehold from Truman’s successors in title the provisions of section 62(1) of the Law of Property Act 1925 came into operation which converted such “rights” into a full easement.

47. I can find, however, no basis in fact or law that the Respondents acquired any legal rights over either car park. My reasons are as follows:-

(1) It is apparent in my judgment from the evidence that in about 1982 the GLC only granted a bare non-exclusive licence to Trumans enabling the patrons of the Palm Tree to park in the Haverfield Road Car Park. It is also apparent that insofar as the New Car Park to be created in the vicinity of the Palm Tree was concerned that Trumans refused to take responsibility for it and that it was to be for general park/canal side use. The support for this interpretation can be found in the minutes of the meeting held on 10^th January 1983 (at page 162/164 of the Bundle) which make it absolutely clear that it was agreed that Trumans would not have exclusive use of the New Car Park although the space provision would be reviewed, if necessary.

(2) Similarly it can be seen in the minutes of the meeting held on 9^th February 1987 (at pages 170/172 of the Bundle) that Trumans requested that parking facilities be allowed closer to the Palm Tree. It is apparent from these minutes that no request was made by Trumans for exclusive use of the New Car Park to be constructed in the vicinity of the Palm Tree either by way of a tenancy or licence agreement;

(3) In such circumstances, the Respondents, as tenants of Trumans, could have no greater right than Trumans themselves had, or were to be granted, over either the Haverfield Road Car Park, or the future New Car Park;

(4) Further, as the Respondents had no rights themselves other than the informal non-exclusive rights arising under a bare licence in favour of Trumans over the Haverfield Road Car Park, then accordingly, they had no rights to release as part of any arrangement in respect of the New Car Park. It was Trumans (or the successors in title) who owned the Palm Tree and were the beneficiaries of the licence to park in the Haverfield Road Car Park, and not the Respondents. The Respondents did not purchase the freehold of the Palm Tree until July 1993. Thus they were not in a position to “give up the Car Park of Haverfield Road” as asserted during the course of the evidence;

(5) In so far as the events of 1992 are concerned, there is no evidence of any written or oral agreement made between the Council and the Respondents to the effect that they were to have exclusive use of the New Car Park whereby in exchange for the Respondents’ confirmation that they would not object to the new road layout and were to release any rights in the Haverfield Road Car Park, the Council were to extend the existing area around the Palm Tree by creating the New Car Park partially on the Disputed Land. I accept the evidence of Mr Harrison in this regard who stated that there was no such agreement. Further, as I have already noted above, at that particular stage in history the only rights that the Respondents may have had at that stage were as the tenants of Trumans, and there is no evidence that either Trumans (or the Respondents) entered into any such agreement;

(6) Furthermore, not only do I accept that no such written or verbal agreement was made, in my judgment it would have been impossible for Mr Harrison, or any of the other officers of the Council, at any stage to make any representations or promises to the Respondents that they could have exclusive use of the New Car Park for two reasons. They are the following:-

(a) there is no evidence that the officers concerned had been given any delegated powers to do so – indeed the evidence as exists is to the contrary; and

(b) section 132(2A) of the Local Government Act 1972 is in point, Undoubtedly any attempt by the Council to dispose of its land under the general provisions contained in section 123 would have to follow the necessary statutory procedures in order to give effect to any such disposal. There is a complete lack of evidence of this in the present case. Indeed, there is evidence of the contrary position when regard is had to the correspondence and other documentary evidence to which I have referred above.

(7) Thus the claims arising from the acquisition of an exclusive easement over either car park on the basis of some form of contractual enforceable right or arising from proprietary estoppel or constructive trust has no basis in law or fact.

48. Finally, the point should be made that had the Respondents considered that they were entitled either to the ownership of the Disputed Land or at least to hold an exclusive enforceable easement over it for parking, then the question should be asked – why was it that they were ready to seek registration of only one half of the Former Highways in 2000 but not the Disputed Land?

49. In conclusion, and for the sake of completeness, I should refer to the number of points raised by Counsel for the Respondents.

(1) Submissions were made as to the provisions of section 62 of the Law of Property Act 1925 and implied grants. I found it difficult to understand the basis of these submissions which seem to be irrelevant to the circumstances of the present case having regard to the terms of the section. The Respondents were not parties to any conveyance or transfer of land or any interest in land into which any licence or rights or quasi rights in the nature of an easement could be implied which could then be converted into a full easement by virtue of the operation of the section. They purchased the freehold of the Palm Tree in July 1993, but the Council was not a party to this transaction and no reference is made in this conveyance to any rights over the Disputed Land;

(2) As I have stated above, I reject the contention that there was any legally enforceable agreement made in 1992 whereby the Respondents released any rights they may have had over the Haverfield Road Car Park in return for the grant of rights over the New Car‑Park which included the Disputed Land. I therefore reject the assertion that there was any contractual enforceable easement. Even if there had been sufficient evidence of such an easement the provisions of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 would have been applicable, and which have clearly not been satisfied. As I have stated above, any rights which may have existed were in the nature of a bare licence originally granted by the GLC in favour Trumans and the Respondents were not parties to any arrangements made;

(3) I was also addressed by Counsel for the Respondents on the acquisition by the Respondents of a beneficial interest by a constructive trust in some way conferred by contract which, as he put it, “shades into proprietary estoppel”. Again, I found these submissions difficult to understand and these principles did not appear to be relevant to the circumstances of the present case. In my judgment, these submissions seem to be based upon misunderstandings on the part of the Respondents as to their perceptions of their rights over the Disputed Land;

(4) Counsel also provided submissions on the Human Rights Act 1998, and Article 1, of the First Protocol of the European Convention on Human Rights, the relevance of which I could not see in the context of the circumstances of the case.

50. In such circumstances, and in accordance with the issues set out in paragraph 10, above, I find that the Council is entitled to be registered as the freehold proprietor of the Disputed Land on the basis of the application of the Presumption. I further find that there is no evidence in support of the acquisition of an easement arising by way of a contractual right or otherwise in the terms of the First Easement in favour of the Respondents over the Disputed Land. It therefore goes without saying that the Respondents have no right to park over the Disputed Land, exclusive or otherwise. Finally, the Council is not estopped from denying the existence of the First Easement. Accordingly, I shall direct the Chief Land Registrar to give effect to the original application.

51. As to the issue of costs, as the Respondents have opposed the application and have comprehensively lost then costs should follow the event.

Dated thi s 4^th of February 2009

By Order of The Adjudicator to HM Land Registry