REF/2012/0640/0639

 

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

(1) THOMAS CHARLES TOOMEY

(2) BEN GRAFTON

 

APPLICANTS

 

and

 

(1) PETER GIBBONS

(2) CAROLE GIBBONS

 

RESPONDENTS

 

 

Property Address: Land on the East side of Sundown, Clarks Close, Brympton, Yeovil

Title Number:WS60322

 

Before: Judge Michell

 

Sitting at: Yeovil County Court

On: 21 ^st and 22 ^nd November 2013

 

 

First Applicant Representation: Mr Andrew Vinson, counsel, instructed by Stephensons

Second Applicant Representation: Mr Robert Trevis, counsel

Respondent Representation: Mr Toby Huggins, counsel, instructed by BGW Solicitors

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

RIGHT TO PARK-PRESCRIPTION OR LOST MODERN GRANT-WHETHER PARKING-WHETHER FORCIBLE –

 

 

 

Cases and Authorities referred to

 

Gale: The Law of Easements (18 ^th ed.)

Bartlett v. Downes (1825) 3 B & C 621.

Tehidy Minerals Ltd. v. Norman [1971] 2 QB 528

Batchelor v. Marlow [2001] 1 EGLR 119

Smith v. Brudenell-Bruce [2002] 2 P&CR 4

Moncrieff v. Jamieson [2007] UKHL 42

Virdi v Chana [2008] EWHC 2901 (Ch)

Polo Woods Foundation v; Shelton-Agar [2009] EWHC 1361 (Ch)

Kettle v Bloomfold Ltd [2012] EWHC 4122(Ch)

 

 

1. The Respondents, Mr and Mrs Gibbons purchased from The Berkeley Leisure Group Ltd. in October 2011 a lane (“the Lane”) at the rear of their home. They applied by an application dated 11 ^th October 2011 to register title to the Lane. The Applicants, Mr Toomey and Mr Grafton both objected to the application. They are the owners of Number 1 and Number 2 Houndstone Corner respectively. They each claim to be entitled to vehicular and pedestrian rights of way over the Lane and also to rights to park on certain parts of the Lane. They objected to the registration of title to the Lane without also registration of the burden of the rights of way and rights of parking. The matter was referred to the Adjudicator to HM Land Registry for determination. Following the abolition of the office of the Adjudicator on 1 ^st July 2013, the function of determining the matter was transferred to the Tribunal.

 

2. I inspected the site on the afternoon before the hearing, accompanied by the parties and their legal representatives. The Lane leads in a northerly direction off a public highway which was formerly part of the A3088 and is called Preston Road. A new road was built slightly to the south, bypassing this stretch of road which now ends in a turning area just to the west of the Lane. Number 1 and Number 2 Houndstone Corner are attached stone cottages of some age. They face towards the road behind substantial front gardens. The southern part of the Lane passes beside the western side of the front and rear gardens of Number 1 Houndstone Corner and the western flank wall of the cottage. Number 2 Houndstone Corner is to the east of Number 1. Two pedestrian gates in the wall along the western side of the garden of Number 1 Houndstone Corner open onto the Lane. A garage forming part of Number 1 Houndstone Corner and situated behind or to the north of the house is accessed directly off the Lane. There is now an opening to the north of the garage, giving access into land forming part of and at the rear of Number 2 Houndstone Corner . A path of old flag stones can be seen leading into the rear garden of Number 2 Houndstone Corner at this point.

 

3. The Respondents have lived at 9 Clarks Close since 1982. Clarks Close is a cul de sac leading off the south side of a road called Gunners Lane. Both Clarks Close and Gunners Lane were built shortly before 1982 as part of a housing development. The top or northern end of the Lane passes along the rear or eastern boundary of the Respondents’ rear garden and joins, at its north end, Gunners Lane. The Lane does not provide access to the Respondents’ home. There is no gate from the Respondents’ property giving access directly onto the Lane. The Lane varies in width and there are indeed disputes between Mr and Mrs Gibson and Mr Toomey and Mr Grafton as to the location of the boundaries of the Lane. The Lane beside the western gable end of Mr Toomey’s house is wider than it is in other parts.

 

Title History

4. By a conveyance made on 16 ^th January 1959 the Secretary of State for the War Department conveyed to Brigadier Arthur Collins OBE and Mrs Collins land which included the land now comprising Numbers 1 and 2 Houndstone Corner as well as some adjoining land further to the east. It appears from the conveyance that what is now Number 1 Houndstone Corner was then a café. The land was conveyed together with a right of way for the purchasers and their successors in title with or without vehicles over and along the Lane subject to the purchasers contributing one half of the certified annual costs of maintenance and repair.

 

5. Brigadier and Mrs Collins conveyed Number 2 Houndstone Corner to Brigadier Collins’s brother, Colonel Donald Collins M.B.E. T.D. by a conveyance made on 18 ^th March 1960 (“the 1960 conveyance”). Number 2 Houndstone was conveyed to Colonel Collins together with a right of way with or without vehicles over and along the Lane subject to Colonel Collins contributing a reasonable proportion of the certified annual costs of maintenance and repair.

 

6. Number 1 Houndstone Corner was conveyed by Brigadier and Mrs Collins to Mrs Aimee Marchant by a conveyance made on 17 ^th July 1964 (“the 1964 conveyance”). That conveyance was made together with the right of way for the purchaser and her successors in title with or without vehicles to pass over and along the Lane subject Mrs Marchant contributing a reasonable proportion of the certified annual cost of maintenance and repair with other persons using the Lane. The land shown on the conveyance plan as being the land conveyed appeared to be only the house and the front garden but not any of the land to the rear of the house.

 

7. Victoire Marchant died on 25 ^th November 1974. On 15 ^th September 1988 Leslie Pinney Marchant (the widower of Victoire Marchant) and Judith Margaret Colley conveyed the land at Number 1 Houndstone Corner conveyed by the 1964 conveyance, to Mr Toomey and Emma Lucy Bird. The conveyance was expressed to be made together with the rights easements privileges and advantages contained or referred to in the 1964 conveyance. At the time of this conveyance, Colonel Collins made a statutory declaration declaring that between 17 ^th July 1964 and her death Victoire Marchant and her husband were in possession of land at the rear of Number 1 Houndstone Corner, forming the rear garden and site of a garage .

 

8. Number 2 Houndstone Corner was sold and transferred by Abbotsdale Homes Ltd to Mr Grafton, the transfer being dated 20 ^th July 1998. There is no evidence before me as to how title to Number 2 Houndstone Corner came to vest in Abbotsdale Homes Ltd. Number 2 Houndstone Corner was transferred together with the benefit of the rights contained in the 1960 conveyance. Mr Grafton was not registered as proprietor of Number 2 Houndstone Corner until 12 ^th January 2001.

 

9. The Lane was conveyed by the Secretary of State for Defence together with other land comprising 4.10 acres or thereabouts to Mobile Home Parks Ltd. by a conveyance made on 19 ^th January 1981. There was no evidence before me as to how title came to vest in The Berkeley Leisure Group Ltd. The Berkeley Leisure Group Ltd transferred the Lane to Mr and Mrs Gibbons subject to

“such right of way as may exist for the benefit of 1 Houndstone Corner … and 2 Houndstone Corner”.

 

Right of Way

10. Mr Toomey claims to be entitled to a right of way over the Lane and relies on a conveyance of 19 ^th July 1964 whereunder Number 1 Houndstone Corner was conveyed to his predecessor in title together with a right of way over the Lane. Mr and Mrs Gibbons in their Statement of Case accept that Mr Toomey has a right of way over the Lane.

11. Mr Grafton claims to be entitled to a right of way referred to in a conveyance dated 18 ^th March 1960. The Respondents in their Statement of Case accept that Mr Grafton has a right of way over the Lane.

 

Right to Park

12. Mr Toomey claims to have acquired by prescription under the Prescription Act 1832 or under the doctrine of lost modern grant, the right to park on the Lane and in particular on or adjacent to three spaces, one being immediately in front of the doors to the garage of Number 1 Houndstone Corner and the other two being across the Lane from the western flank wall of the cottage at Number 1 Houndstone Corner. The spaces are not now and have never been marked out on the ground and it is not possible to identify the exact limits or boundaries of these spaces. He claims to have parked cars in those spaces ever since he acquired Number 1 Houndstone Corner in September 1988.

 

13. Mr Grafton claims to have acquired by prescription under the Prescription Act 1832 or under the doctrine of lost modern grant the right to park on the Lane. Mr Grafton’s case is that Colonel Collins used the Lane for parking and that he has used the Lane for parking since he has owned Number 2 Houndstone Corner.

 

Parking related to 1 Houndstone Corner

14. When Mr Toomey purchased Number 1 Houndstone Corner, the road to the front of that property was a busy single-carriageway main road. His house was situated on a bend in the road and almost opposite a junction. It was then plainly not a sensible place to park, although some cars may have parked on the road occasionally. Mr Toomey said that he did not park his cars on the road. He said that he parked them on the Lane. Mr Toomey said that when he bought Number 1, he then had three MG cars and a Toyota Hi-Ace van.

 

15. Mr Toomey’s evidence as to what cars he had was confirmed by evidence from his mother, Mrs Roberts. Mrs Jeanette Roberts lived with her husband in Surrey in 1988. She was then accustomed to visit Mr Toomey to stay with him for a weekend or sometimes a week. In 1992 she moved to Odcombe, a village about a mile away from the Lane and in 2001 she moved to her current home in Yeovil, about half a mile away from the Lane. Mrs Roberts confirmed that Mr Toomey had MG cars and a Toyota van when he moved into 1 Houndstone Corner and that he parked them in the Lane. Her evidence was that there were always three cars in Mr Toomey’s household and they were parked in the Lane

 

16. Jill Carney was Mr Toomey’s girlfriend from October 1992 and moved into 1 Houndstone Corner to live with Mr Toomey in about March 1993. Ms Carney lived at 1 Houndstone Corner between 1993 and December 1997 and between January 2001 and 2005. Before moving in, she spent a lot of time at 1 Houndstone Corner. Ms Carney gave evidence that Mr Toomey had a white Peugeot estate car which he parked on the Lane, either on the other side of the Lane from the end of 1 Houndstone Corner or on the Lane beside the rear garden of 1 Houndstone Corner. Ms Carney parked her car in one of these places also. She said that Mr Toomey also had an MG sports car, which was usually in the garage but which was parked on the Lane while Mr Toomey was working on it. Ms Carney had a blue Renault Traffic van from 1993 until 2003. The van was regularly parked on the Lane throughout this period, including during the period from 1997 to 2000 when Ms Carney was working in South Africa. Mr Toomey used the van in this period. On the sale of the van in 2003, Ms Carney purchased a green Mitsubishi which she also parked on the Lane. About this time, Mr Toomey purchased a Jaguar car, which he parked on the Lane.

 

17. Mrs Tracy Nicholls and her mother previously ran a cleaning business under the name “Clean Living”. Mrs Nicholls gave evidence that she attended 1 Houndstone Corner to clean the cottage while Mr Toomey was occupying it and during periods when he let it out for holiday rentals. Mrs Nicholls produced from the records of Clean Living a list of dates when someone from Clean Living attended 1 Houndstone Corner. These were various days in 2003-2004, 20 days in 2005, 13 in 2006, 16 in 2007, 14 in 2008 22 in 2009 and 18 in 2010. When she attended 1 Houndstone Corner, she parked in the Lane.

 

18. Mr Blackwell gave evidence. He has lived at 4 Houndstone Park, the mobile home park to the north of the Lane. He has walked down the Lane on a daily basis. He met Mr Toomey shortly after Mr Toomey moved to 1 Houndstone Corner. Mr Blackwell said that there were usually 2 vehicles parked across the Lane from the end of 1 Houndstone Corner and sometimes one parked on the Lane outside Mr Toomey’s garage.

 

19. Mr and Mrs Gibbons both gave evidence that Mr Toomey only had two cars to start with, one of which was a MGB GT. Mrs Gibbons asserted forcefully that Mr Toomey did not have a van when he first moved in and that a van was not parked on the Lane until Jill Carney moved into Number 1 to live with Mr Toomey. However, she accepted that Mr Toomey would be more likely than she was to recall what cars he owned. She said that cars do not really interest her. She also said when giving evidence that she seemed to recall all Mr Toomey’s cars were red. That is plainly a mis-recollection because Mr Toomey produced photographs showing parked on the Lane a blue MG and a white Peugeot which Mrs Gibbons accepted in cross-examination were Mr Toomey’s cars. Mrs Gibbons also said that she was not bothered by what was parked on the Lane. Cars did not interest her. She would walk down the Lane and was not interested in what cars were there unless they were obstructing the Lane.

 

20. Mr Gibbons said that Mr Toomey only had two cars initially. He said that Mr Toomey had one car, a white one, when he moved into Number 1 and that later he bought an MG. The MG was parked in the rear garden of Number 1 and the white car was parked on the Lane, albeit to start with it was parked in the middle of the Lane. This evidence differed somewhat from what was stated in the Respondents’ Statement of Case, where the Respondents said that the MG was parked in the garage. Mr Gibbons had to accept that this was not correct because the garage was not built until after Mr Toomey had moved into Number 1.

 

21. Mr Peter Moore has lived at 8 Clarks Close since 1983. In cross-examination, he accepted that it was possible that Mr Toomey had 2 MG cars and a Toyota van when he moved into 1 Houndstone Corner. He also said that it was possible that in 1988 Mr Toomey parked his vehicles on the Lane. He accepted that the Lane was the only place for a person living at 1 Houndstone Corner to park and for visitors to 1 Houndstone Corner to park.

 

22. I accept the evidence of Mr Toomey that he had MG cars and a Toyota van when he bought Number 1 Houndstone Corner and that he parked these on the Lane. His evidence is supported by the evidence of Mrs Roberts, Ms Carney, and Mr Blackwell. I do not consider that Mr and Mrs Gibbons’ evidence that Mr Toomey only had two cars initially is accurate. I consider that Mr Toomey is far more likely to have an accurate recollection of what cars he owned than is Mr Gibbons or Mrs Gibbons. Mrs Gibbons was not interested in cars and her evidence as to what cars Mr Toomey had on the Lane, where it contradicts the evidence of Mr Toomey and Mrs Roberts, cannot be relied upon. I do not consider that Mr and Mrs Gibbons can now accurately recall, if indeed they ever knew, what cars Mr Toomey owned at the time he moved into Number 1.

 

Parking relating to Number 2 Houndstone Corner

23. Mr Grafton gave evidence. Number 2 Houndstone Corner was transferred to him by a transfer dated 20 ^th July 1998. Mr Grafton said he moved in in 1998 although after about a year he did works to raise the roof of the cottage. He did not know when Colonel Collins moved out but when he viewed, the house was furnished, the heating was switched on and there was no obvious damp. His evidence was that when he bought Number 2 Houndstone Corner there was a flagstone path about 2 metres to the north of the garage and then a space to the left of an existing oak tree, sufficiently wide to park a vehicle. He had 3 cars when he moved into 2 Houndstone Corner in 1998 and has had a fourth car since 2002 or 2003. He always parked one car off the Lane on the space by the oak tree and the other cars on the Lane.

 

24. Ms Carney was asked about Colonel Collins. She said that she knew Colonel Collins. She recalled him parking in an open area near to the rear of his garden. She could not recall if his car was parked in part on the Lane.

 

25. Mr Peter Moore gave evidence that Colonel Collins used to park his car on a piece of land off Gunners Lane. He said that he thought it was odd Colonel Collins parked where he did because if he, Mr Moore had lived at Number 2 Houndstone Corner, he would have parked in the Lane but Colonel Collins did not do so.

 

26. Mr John Clarke has lived at 1 Clarks Close since 1989. He used to walk over to see a friend who lived at 1 Gunners Lane, about two or three times a week. Whenever he walked past, he saw Colonel Collins’s car, a white Austin Maestro parked off Gunners Lane. He sometimes chatted to Colonel Collins when he was standing by his car. Mr Clarke recalled seeing Colonel Collins walked from the place where he parked into the rear garden of Number 2 Houndstone Corner, without going along the Lane.

 

27. Mr Toomey gave evidence about Colonel Collin’s parking. He said that Colonel Collins had a silver Maestro and that on more than half the time, he would park to the north of an oak tree a little way to the north of the garage of Number 1 Houndstone Corner. He parked so as to be partly on his land and partly on the Lane. Mr Toomey said there was an access way from where Colonel Collins parked to the north of the oak tree into the rear garden of Number 2 Houndstone Corner. He said that Colonel Collins moved out of Number 2 Houndstone Corner in late 1997 or early 1998.

 

28. The Respondents produced an aerial photograph showing a car parked on land off Gunners Lane at the very north end of the Lane. Mr Toomey identified the car as being Colonel Collin’s car but said nevertheless that Colonel Collins used to park on the Lane by the oak tree.

 

Correspondence from Berkeley Leisure

29. Mr Toomey received a letter from Berkeley Leisure Group Ltd, signed by a director Mr Woolley dated 10 ^th August 2010. The same letter was sent to Mr Grafton. The letter was written in response to a letter both men had sent to Mr and Mrs Gibbons. Their letter was not in evidence. After asserting that Berkeley still owned the Lane and describing the letter to Mr and Mrs Gibbons as “both threatening and harassing”, Mr Woolley went on to write

“With regard to the lane, I would advise that you and Mr Grafton have a right of way over the lane with or without vehicle but you do not have the right to park your vehicles in the lane. These have to be parked on your own property. I have already pointed this out – see for example the letter I sent to Mr Toomey on 18 ^th October 1989 in response to Mr Toomey’s request for a fence and gate to be erected at the entrance to the lane from the main road.

As Mr Toomey is aware we did install bollards at the entrance to the lane adjoining the road from Houndstone Park which were subsequently vandalised and stolen. We shall now consider reinstating bollards or a large gate leaving pedestrian access only from Houndstone Park for our residents who we have allowed to use the lane and have asked our solicitors for guidance”.

Mr Toomey gave evidence that he received a letter on 18 ^th October 1989 from Mr Woolley stating that he had vehicular and pedestrian access over the Lane but not the right to park. He said that he mentioned the letter to Colonel Collins, who told him not to worry about it because Colonel Collins had been parking on the Lane since 1960. Mr Toomey did not speak about the letter to Mr Woolley or reply to it. He had subsequently thrown the letter away. It was submitted that Mr Toomey’s evidence in respect of this letter was unsatisfactory; that it was odd for him to have discussed the letter with Colonel Collins and not with Mr Woolley; and that there may have been further correspondence between Mr Toomey and Mr Woolley, which Mr Toomey was not disclosing. I do not accept this criticism of Mr Toomey. I note that I do not know the terms of the letter received on 18 ^th October 1989. It may not have been in terms which demanded any reply. It seems to me that it would have been wholly understandable for Mr Toomey to have discussed the matter with his neighbour who had lived at Houndstone Corner for many years and having been reassured by Col. Collins that he had been parking for years on the Lane, to have done nothing further. I accept Mr Toomey’s evidence.

30. Mr Toomey and Mr Grafton replied on 20 ^th August 2010 to Mr Woolley’s letter of 10 ^th August 2010, setting out their account of their dealings with Mr and Mrs Gibbons and saying they were seeking legal advice. Mr Woolley replied by a letter dated 24 ^th August 2010. He stated as follows

“I wrote to you in response to a letter received by Mr and Mrs Gibbons, as it gave the impression to them that Mr Toomey and Mr Grafton owned the lane which we know is not so. My letter dated 10 ^th August 2010 to you both was purely to advise of the situation with regards to the lane (paras 4 and 5 refer). I have no intention of getting involved in any arguments between Mr Toomey, Mr Grafton and Mr and Mrs Gibbons.

. Mr Toomey, Mr Grafton and Mr and Mrs Gibbons have indicated that legal advice will be sought in which case hopefully this should bring this unpleasant situation to an end.

My involvement is purely to protect the Berkeley Leisure Group’s interest concerning the lane and in this connection once we have staff available we will notify you both when we intend to start work to close off the land, allowing pedestrian access only from Houndstone Park end”.

The Houndstone Park end means the northern end. It is to be noted that Mr Woolley did not say anything in this letter about Mr Toomey and Mr Grafton parking on the Lane and did not say that his company would do anything to stop their parking on the Lane.

 

Law

31. It is common ground that a right to park is capable of existing as an easement and can be acquired by prescription at common law, by statutory prescription or under the doctrine of lost modern grant. A right to park cannot exist as an easement if its exercise would leave the owner of the servient land without any reasonable use of his land whether for parking or anything else. – Batchelor v. Marlow [2001] 1 EGLR 119. Batchelor v. Marlow was not overruled by the House of Lords in Moncrieff v. Jamieson [2007] UKHL 42 (House of Lords – Scotland – see Virdi v Chana [2008] EWHC 2901 (Ch) and Polo Woods Foundation v; Shelton-Agar [2009] EWHC 1361 (Ch).

32. The Applicants claim to be entitled to a right to park under the doctrine of lost modern grant and/or the provisions of the Prescription Act 1832. The doctrine of lost modern grant was described as follows by Buckley L.J., giving the judgment of the court in Tehidy Minerals Ltd. v. Norman [1971] 2 QB 528 at 552

“In our judgment Angus v Dalton decides that, where there has been upwards of twenty years’ uninterrupted enjoyment of an easement such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the twenty year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that such a grant was not made.

If this legal fiction is not to be displaced by direct evidence that no grant was made, it would be strange if it could be displaced by circumstantial evidence leading to the same conclusion, and in our judgment it must follow that circumstantial evidence tending to negative the existence of a grant (other than evidence establishing impossibility) should not be permitted to displace the fiction”.

 

33. The necessary qualities to fulfil the requirements of prescription are that the enjoyment must have been “as of right”. To have been “as of right” it must not have been by violence, nor by stealth nor by permission asked from time to time. The enjoyment must be “enjoyment as of right” and enjoyment by the permission of the landowner is not user as of right. When considering whether user is by permission, it is important to keep in mind the distinction between “permission” and “acquiescence”. The distinction is explained as follows in Gale: The Law of Easements (18 ^th ed.) at 4-95

“The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is “as of right”; acquiescence is the foundation of prescription. However, user which is with licence or permission of the owner is not “as of right”. Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence.”

 

34. The enjoyment must be known to the owner of the land over which the enjoyment is being had or he must have the means of knowledge of that enjoyment. Further, the enjoyment must be “of such a nature, and take place at such intervals, as to afford an indication to the owner of the servient tenement that a right is claimed against him – an indication that would not be afforded by a mere accidental or occasional exercise – see Bartlett v. Downes (1825) 3 B & C 621.

 

35. The Applicants claim in the alternative to be entitled to a right to park by prescription under section 2 of the Prescription Act 1832. To succeed under section 2, the Applicants must show that they parked on the track as of right for a period of 20 years. By section 4, it is provided that the period of 20 years must be a period

“next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question”.

 

36. It was submitted that Mr Toomey’s use of the Lane after he received the letter in October 1989 was contentious, i.e. that it was not user as of right. In Smith v. Brudenell-Bruce [2002] 2 P&CR 4 Pumfrey J. said

“ It seems to me a user ceases to be user "as of right" if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner's knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. A user is contentious when a servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user”.

 

Findings

37. I am satisfied that Mr Toomey has established that he, his former partner and his visitors have parked cars on the western side of the Lane where it runs alongside the flank wall of 1 Houndstone Corner and outside the garage on a regular basis since he moved into 1 Houndstone Corner and has done so for more than 20 years since that date. The user was of sufficient frequency to afford an indication to the owner of the Lane that a right was claimed. The parking was not only occasional and infrequent. The fact that Mr Toomey and his visitors were parking on the Lane would have been apparent to the owner of the Lane. There is no evidence that Mr Toomey parked with the permission of the owner of the Lane. I am not satisfied that the parking was contentious so as not to amount to user as of right. Having not seen the letter of 18 ^th October 1989 and there being no satisfactory secondary evidence of its terms, I am unable to find that it was a letter which indicated that the user of the Lane objected to the parking and would back his objection by physical obstruction or by legal action. Accordingly, I do not find that the sending or receipt of this letter made the parking contentious.

 

38. Having regard to the nature of the land over which the right to park is claimed, namely a reasonably wide unmade lane in a semi-rural area, I do not find that the right to park claimed by Mr Toomey would leave Mr and Mrs Gibbons without any reasonable user of the Lane or that part over which the right to park is claimed by Mr Toomey. Mr and Mrs Gibbons will still be able to make the following uses of the land, namely

(1) they are able to go on foot and with vehicles across the land on which the right to park is claimed when no vehicle is parked on it;

(2) they are able to authorise others to do the same;

(3) they can do works to the surface provided that these do not significantly interfere with the right to park;

(4) they can lay pipes or cables under it or authorise others to do so; and

(5) they can place overhead cables across the land or authorise others to do so, provided that the cables would not interfere with parking.

These were identified by HH Judge Cooke sitting as a Judge of the High Court in Kettle v Bloomfold Ltd [2012] EWHC 4122(Ch) when considering whether a lease granted a right to park on a designated parking space as it purported to or in fact demised the parking space, as activities the freeholder could carry out on the space in respect of which a tenant had the sole right to park. The learned Judge held that the freeholder retained a reasonable user of the parking space and accordingly that the right to park granted under the lease was an easement. That was a case concerning a single parking space. The area in this case is larger. The activities which Mr and Mrs Gibbons are able to do on the land do amount to reasonable user of the land.

39. As to parking on the Lane by the owners and occupants of 2 Houndstone Corner and their visitors, I accept that Mr Grafton has parked on the Lane since 1998. However, I am not satisfied that he and his predecessors in title have together for a period of 20 years parked on the Lane so as to give rise to an easement by prescription. I am not satisfied on the evidence that Colonel Collins parked on the Lane with sufficient regularity and frequency to afford to the owner of the Lane that he was claiming a right to park. I accept the clear evidence of Mr Moore and Mr Clarke, namely that while they lived where they lived now, Colonel Collins parked regularly on the piece of land off Gunners Lane and not on the Lane. I accept their evidence. They were both plainly honest witnesses without any interest in the outcome of the proceedings. Mr Moore’s reason for recalling where Colonel Collins parked had the ring of truth about it. He was surprised that Colonel Collins did not park on the Lane because parking on the Lane seemed to him to be the obvious thing to do. I accept Mr Toomey’s evidence that Colonel Collins did park on the Lane on occasions but I do not accept that this was the regular place where he kept his car when not in use. No doubt there would have been occasions on which Colonel Collins did stop or park his car on the Lane in order to go into his house. It would have been a convenient place to load or unload his car. However, generally he did not park on the Lane but in a place off Gunners Lane, as visible in the aerial photograph in evidence. His parking on the Lane during the period within the knowledge of Mr Moore and Mr Clarke was occasional and not such as to indicate to the owner that a right was being claimed.

 

Conclusions

40. I shall direct the Chief Land Registrar to give effect to the application of the Respondents to register title to the Lane but subject (1) to the burden of rights of way in favour of both Number 1 Houndstone Corner and Number 2 Houndstone Corner being noted on the register and (2) to the burden of a right to park in favour of Number 1 Houndstone Corner being noted on the register. I have found that Mr Grafton has not established that there is a right to park on the Lane in favour of Number 2 Houndstone Corner.

 

Costs

41. My preliminary view is that it would be just for costs to follow the event and accordingly, that Mr and Mrs Gibbons should pay Mr Toomey’s costs of the proceedings but that Mr Grafton should pay Mr and Mrs Gibbons’s costs so far as they relate to defending the claim made by Mr Grafton to a right to park on the Lane. Any party who wishes to submit that some different order ought to be made as to costs should send written submission to the Tribunal and copy them to the other parties by 5pm on 25 ^th April 2014

 

 

 

BY ORDER OF THE TRIBUNAL

 

 

 

 

 

 

DATED this 10 ^th day of April 2014