England and Wales Land Registry Adjudicator

 

 

 

 

REF: 2013/0081

 

FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)

 

LAND REGISTRATION DIVISION

 

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN:

 

(1) TREVOR WINTERBURN

(2) ELIZABETH WINTERBURN

Applicants

 

 

and

 

 

(1) GARY BENNETT

(2) LYNNE BENNETT

Respondents

 

 

Property Address: Land on the North West Side of Halifax Road, Keighley

 

Title No: WYK900344

 

Before: Neil Cadwallader Esq. sitting as a Deputy Judge on 24 ^th and 25 ^th July 2013.

Cases referred to:

Batchelor v Marlow [2001] EWCA Civ 1051

Bulstrode v Lambert [1953] 1 WLR 1064

Dalton v. Angus & Co (1881) 6 App Cas 740

Field Common Limited v. Elmbridge Borough Council [2005] EWHC 2933

Hair v Gillman 80 P & CR 108

Kettel v Bloomfold [2012] EWHC 1422 (Ch)

Lewis v. Redcar & Cleveland Borough Council (No. 2) [2010] UKSC 11

Moncrieff v Jamieson [2007] UKHL 42

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

 

Key words: Easement – right of way – right to park – right to unload – prescription – force – nec vi - extent of jurisdiction

Representation: Applicants: Caroline Shea, instructed by DAC Beachcroft

Respondents: Bruce Walker, instructed by Dyne Solicitors

 

DECISION

The dispute

1. This is a dispute about a right of way claimed by the Applicants. The Applicants made application on or about 2 ^nd August 2012 for registration of an easement alleged to have been acquired by prescription in the following terms:

 

“ A right of way with or without vehicles for the benefit of the land registered under Title No: WYK865313 over that part of the land registered under Title No; WYK900344 showed hatched green on the enclosed plan together with a right to receive deliveries from suppliers’ vehicles parked temporarily on the land hatched green.”

 

 

2. The Respondents objected to that application, and the matter was referred to the Adjudicator to H.M. Land Registry in January 2013. Since then, the functions of the Adjudicator have been transferred to the Property Chamber of the First-Tier Tribunal, with the effect that these proceedings continue as proceedings before that Tribunal.

 

The layout

3. The layout of the relevant areas of land is clearest from the coloured Land Registry plan appearing at p.197 in the Trial Bundle. A helpful verbal description is to be found in the Applicants’ Skeleton Argument, which I adopt and adapt as follows. The Applicants’ land is an irregular, but roughly rectangular, plot abutting the public highway along its long eastern boundary. It consists of a fish and chip shop (“the shop”), a small forecourt on which it is possible to park two cars (“the forecourt”), and a small garden area (“the garden area”). To the south and west of the Applicants’ land lies land now in the ownership of the Respondents (“the Respondents’ land”), which consists of an open area or yard, in the nature of a car park (“the car park”), with access alongside the Applicants’ land to the highway. At the rear of the car park, along its north western boundary, lie buildings also owned by the Respondents which used to house the Conservative Club (“the Club building”). To the north of the Club building lies the Great Northern Inn, a public house with a seating and parking area also open to the main road. At some point in the past, it had been possible to pass between the car park on the Respondents’ land and the pub car park, but a fence now lies between them.

 

4. The Applicant’s land is registered at HM Land Registry under Title No. WYK865313. The Respondents’ land is registered under two title numbers, WYK692751 and WYK900344. The latter title, which is a possessory title, relates to the car park. The Applicants’ application relates to the area coloured blue on the plan of the trial bundle at p.197, which is the area of the car park nearest the road (“the disputed land”). The Applicants’ land is shown edged red on that plan; the Club is shaded yellow; and the whole of the car park is edged green on that plan. The public house building is edged orange.

 

The history

5. Much of the history is not in dispute. In 1987 or 1988 the Applicants took up occupation of the Applicants’ land (including, as the Respondents’ conceded at trial, the garden area) as tenants or licensees and ran it as a fish and chip shop. The user of the disputed land upon which the Applicants rely is alleged to have started at this point. They took a 20 year lease of the same land dated 22 ^nd October 1992. The Lease described the user as ‘Lock Up Fish and Chip Shop and Restaurant’. There was no express reference to rights of way. The landlord had been the Keighley & Worth Valley Light Railway Limited (and a railway tunnel ran or runs beneath much of the disputed land and some of the Applicants’ land). On 16 ^th February 2006, however, the railway company transferred its interest to Skipton Properties Limited. On 17 ^th October 2007 the Applicants purchased the freehold of the Applicants’ Land for £55,000, and on 16 ^th November 2007 were registered as proprietors of it. On 12 ^th March 2009, title to the car park was registered on a possessory basis. On 26 ^th February 2010 the Respondents purchased the Respondents' land and on 22 ^nd March 2010 were registered as proprietors of it.

 

6. By a Lease dated 18 ^th May 2012 the Respondents let the Club building for 5 years to a tenant trading as Wildlife Rescue Sanctuaries for use as a wildlife centre. The person who ran the centre, one Marianne Crowley, started to obstruct access to the car park. In about February 2012 she placed a number of plastic traffic cones and a chain across it, not at the boundary between the public highway and car park, but on the disputed land and further back, roughly where the car park broadened out. This did not prevent vehicular or pedestrian access over the car park, or parking on the area of the car park nearest the highway; but it did obstruct access to the balance of the disputed land. In May 2012, however, the traffic cones were placed across the access from the highway, preventing all vehicular access, though not access on foot. Later that month, however, a wooden fence was erected across the access way where it joined the public highway. For a few months it contained hinged sections that allowed it to be opened, but towards the end of November 2012 those were shut off, thus preventing any vehicular or pedestrian access to the Applicants’ Land over the car park. In consequence, the Applicants opened a new pedestrian access through the wall of their property abutting the pavement and highway. In March 2013 the Respondents re-took possession of the Club from the wildlife centre.

 

The rights claimed

7. The way in which the Applicants framed the rights which they sought in their Statement of Case was as follows:-

(1) The Applicants have exercised a right of way over that part of the Respondents’ land shown tinted blue (“the access land”) [i.e. the disputed land] with vehicles to reach the parking space on the property [i.e.the Applicants’ land] from 1987 until February 2012 when the access land was blocked off.

 

(2) The Applicants, their customers, employees, suppliers and invitees have exercised a right of way on foot over the access land in order to reach the fish and chip shop on the property from 1987 until February 2012 when the access land was blocked off.

 

(3) The Applicants’ suppliers have exercised a right of way over the access land to and from the public highway usually about 3 to 4 times a week (but sometimes up to 9 times a week) in order to unload deliveries to the fish & chop shop. The Applicants’ suppliers have pulled off the public highway onto the access land and stopped on the access land temporarily to unload their deliveries. This right to receive deliveries on the access land has been exercised by the Applicants from 1987 until February 2012 when the access land was blocked off.

 

(4) The Applicants’ customers have exercised a right to park on the access land where this adjoins the property on a daily basis in order to go into the property and pick up their fish & chips from 1987 until February 2012 when the access land was blocked off.

 

8. This formulation was reflected in the Applicants’ Skeleton Argument. The Applicants based their claim on common law prescription, alternatively lost modern grant, alternatively 20 years’ prescription under the Prescription Act 1832. The Respondents denied the claim. By the time of the trial they no longer disputed that there had been 20 years’ user, or that such user had been without permission, or that if there were any easement the whole of the Applicants’ land had the benefit of it. They did dispute that it had been acquired without force (in the special sense in which that word is used in this context) and asserted that the user had been contentious in a way which would prevent any easements coming into existence by prescription. They also disputed that the vehicular rights were claimed were capable of amounting to easements as a matter of law. In response to the Respondents’ assertion that access had been contentious, so as to prevent their being a right of way, the Applicants sought and obtained permission to take the point that the evidence did not support the proposition that the alleged challenges to the Applicants’ user of the disputed land had been raised by or on behalf of the owners for the time being of that land; but at the conclusion of hearing the point was explicitly abandoned, on instructions from the Applicants. In closing submissions the Respondents conceded that the Applicants had a right to pedestrian access over a small part of the access way near the highway, as shown coloured yellow on a plan later submitted to me and agreed between the parties. However, the wider issue whether pedestrian access extended to the whole of the access land remained.

 

The witnesses

9. For the Applicants, I heard oral evidence from Mr Winterburn, Graham Wadsworth, Christopher Hasselby, Colin Barnes, and Valerie Blakely. Witness statements were also submitted in the names of Gordon Nicholson, to which I was invited to have regard, although he was not called as a witness; and Richard Bamford, upon which the Applicants have placed no reliance.

 

10. For the Respondents, I heard evidence from Peter Smith (who made two witness statements), Mick Crowley and Mark Kaine.

 

Immaterial issues

11. As the case developed, I allowed both sides a cautious latitude in giving oral evidence in chief directed to explaining and expanding upon certain aspects of the witness statements. I did not, however, allow oral evidence to range more widely. In consequence, the Respondents’ witnesses gave evidence of some minor matters with which the Applicants did not agree, but their Counsel did not feel she needed to deal with by having witnesses recalled. These related to the number of functions or events put on by the Conservative Club, and the opening hours of the shop.

 

12. The Applicants accepted, she told me upon instructions, that there had been a sign (to which I shall refer below) in the shop window, that Mr Winterburn did not remember the wording of it, but that it was broadly asking people to park in the car park with respect and reasonableness as regards other users; that he agreed that it was present in this windows while Mr Smith had been Club steward, and that it had stayed for not above 2 or 3 weeks.

 

13. Given the tangential importance of those issues, and the desirability of conducting the hearing efficiently, I was content to deal with the matter on that basis, and the Respondents did not object.

The Applicants’ evidence

Mr Winterburn

14. Mr Winterburn’s evidence was that many of his customers had been coming to the fish & chip shop for 20 years, and some for as long as 40 years. He believed the fish & chip shop was one of the oldest in the country. As far as he is aware, access to and from the public highway had always been gained over the access land, which was the only access because, until he made the new entrance, the property had been enclosed by old stone walls, save for one boundary which was made of brick. He parked his car on the paved area at the front of the shop. There was room for a second car on that area and often a member of his staff would park a second car there. The car park had been used as such for many years. The Club had been occupied by the former Ingrow and Hermit Hole Conservative Club until, he thought, about 2007. Until the access land was obstructed in early 2012, the disputed area (and in fact the whole car park) had been freely accessible to everyone by foot and with vehicles from the public highway, and was used by the public as a free car park. His customers would park on the access land, and indeed on the remainder of the car park, while they picked up their food orders. Customers would often drive onto the Respondents’ land from the public highway, turn around and park facing the highway alongside the property whilst they went inside to collect their food. Up until March 2012, there had been no difficulty or confrontation between those using the access land and the car park. He did not accept the Respondents’ suggestion that part of the car park was chained off from 1987 or even earlier, but recalled the installation of a chain, he thought in the late 1990s, towards the rear of the property across the access land; but that was because there had been an attempted break-in at the Club, and after a couple of days it had been cut down by a third party and never replaced. The only other time a chain was installed was in or about February 2012. The Applicants had indeed put up signs in the window of the shop stating “ positively no parking to consume food”. That was not to indicate that the use of the land was with the Respondents’ consent: they simply thought that as a matter of courtesy they should tell their customers not to sit in their cars eating their food. They had had some complaints about litter being dropped and customers hanging around in the car park for too long. They wanted to tell their customers that they ought to pick up their food and go. There had never been any issues over access to the shop. Mr Winterburn received approximately 9 deliveries per week, and opened for a period (which he specified) every day except Mondays. Although the shop was closed on Tuesday mornings, he usually went in to receive deliveries and make preparations for opening later in the day.

 

15. In cross-examination he was taken to the witness statement of Peter Smith, the former steward of the Conservative Club. Mr Smith’s statement said that he and his wife had had to go down to the shop to complain about the Winterburns’ customers using the car park, that they put a chain across the access but that it was cut, so they put barriers across, but they were knocked over, and that on a few occasions his son went down and stickered the cars, but this did not stop the shop owner from letting his customers in. He went on to say that the fish shop owner knew full well he had no right whatsoever to use the club car park. In his second statement Mr Smith referred to a sign on a building adjacent to the car park (but no longer in existence) on the left hand side of the entrance to the car park stating that the car park was for club members’ use only; and that there was also a large sign on the front window of the committee room saying the same, by order of the committee. He said that Mr Winterburn was telling blatant lies if he said Mr Smith had never had cross words with him over his customers using the car park, and he and his wife had several rows with him in the 9 ½ years he was at the club. The sign on the building had been there for years and years, right up until the building was demolished in 2007.

 

16. Mr Winterburn’s evidence in relation to this was that on occasion Mr Smith did indeed come down and complain, but that had not been between 1999 and 2008, but only over the last 2 or 3 years. He had not wanted Mr Winterburn’s customers to use the club car park. Mr Winterburn felt that the reference to “ cross words” was an overstatement. There had never been any rows, in the sense of stand-up arguments. Mr Winterburn said that his customers would do what they wished, and there was nothing he could do to tell them where they could park. The customers were not his licencees, and they were not acting on his instructions. They were not doing it with his permission. It would be foolish for him to tell them not to park there, and there was no way of stopping them. He agreed that the complaints from Mr Smith had been like water off a duck’s back. He accepted that the chain to which I have referred already could not have prevented further burglaries. It was to stop people parking overnight on the car park, and using it as common land. It was not put up to stop his customers from using the car park, although that was the effect. It had the same effect on Conservative Club members. He had heard that the chain had blocked someone in to the car park who had cut it in order to get out. That person could not have left via the pub car park, because it was blocked off by that stage. No barriers had ever been erected by the owners of the Club, unless for particular functions or events. As to the sign saying that the car park was for the use of Club patrons only, 90% of his customers were also members of the Club, and while could not tell whether they were coming for fish & chips or to use the Club or both. He turned a blind eye to the Club’s sign, as everybody did. The sign had been in place, possibly, even when he first took possession; at least he did not remember it being put up later. He also remembered there having been a similar sign in the Club window. He did not, however, remember any cars of non-members being ‘stickered’, and he did not know how any one doing that could have known which cars were those of Club members and which were not. The car park had also been used by visitors to the pub next door, and a pub across the road, and sometimes if they had had too much to drink they would leave their cars overnight. The signs which he had himself put up in his shop window had been put up in March 2012 at the request of the Conservative Club.

 

Mr Wadsworth

17. Mr Wadsworth’s evidence was that he had been a regular customer of the fish & chip shop for about 25 years, and had always driven his car there. Until recently, he used to park his car on the car park, both on the disputed area, and on the rest. This would depend how busy the car park was. At quieter times there might be just one car, or no cars. Sometimes there would be a few cars. At the busiest times there were about 6 cars on the whole of the car park. He preferred to park on the undisputed part of the car park because he felt it was more considerate to other drivers, and most people did. Most of the cars parked on the car park at any given time were fish & chip shop customers. Some people would pull up and park on the access land adjacent to the shop, others elsewhere. As long as people parked in a considerate manner there was plenty of room for people to turn and leave. He did not ever recall seeing a chain. He would never describe the car park as having been packed. He was not aware that the Respondents’ predecessors had objected to use the car park by shop customers. When shown the sign restricting access to the car park to club members, he confessed he had never noticed it, but accepted he must have seen it, and ignored it. He did, however, remember seeing the similar sign in the club window, and ignoring that too, although he was not a member of the club. He knew he did not have permission to use the car park. His car had never been stickered. He used to call about twice a week, more recently about once a week.

 

Mr Hasselby

18. Mr Hasselby too was a regular customer of the shop for at least the last 22 years. He would park on the disputed land when collecting his order. Initially he would go at lunch times, when it was quiet, but later started going on a Friday night, which was very busy. On such nights there would regularly be 6 or 7 cars in the car park all of which would be owned by customers of the shop. They also drove in and out in the same way that he did. He did not recall ever seeing a chain across the disputed land. He accepted that it might appear packed on such occasions. He had never seen the sign restricting use of the car park to Club members, although he would pass its location whenever he drew in. Nor did he see the sign in the window of the Conservative Club. He was never stickered. He used to visit every week regularly, save in 2007 when he was unwell.

 

Mr Barnes

19. Mr Barnes lived in Keighley for 50 years and had been a customer of the shop all his life. He usually got fish and chips from the shop a couple of times a week, often on Fridays and Saturdays. He picked his food up on the way back from the pub, or walked to the shop to pick it up. He would walk across the disputed land. If he had been to the pub first he would usually walk around the back of the shop from the pub, while that route was open. He had seen other customers on foot. He often saw customers’ car parked on the car park, including the disputed land, while they collected their food. On Friday nights the car park would be packed. When he went to collect his order from the shop the Winterburns’ car was usually parked outside on the front. He was not aware of any arguments or discussions about the access or use of the car park. Members of the public accessed the club, the shop, or the other businesses in the vicinity over the years, including a book makers and workshop. He would see deliveries being made to the shop in the mornings, and he particularly remembered the wagon delivering the potatoes and the man delivering the teacakes. He, unlike the other witnesses, did remember that the Conservative Club went through a brief spell of using a chain to block off the car park. He could not remember when it was in place but it was some years ago, and was up for no more than a couple of months at most. He remembered that a local man cut the chain down on the Sunday afternoon when his car got stuck in his car park. The chain did not make any difference to his customers on foot, and did not make much difference to customers in cars because they just parked on the access land in front of the chain. The car park might take between 8 and 10 cars approximately. He only remembered there ever being barriers (apart from recently) when the Club had had a function. He was aware of the sign on the wall between 1987 and 2007: it had been there for everyone to see. He almost remembered a similar sign in the Club window. He did not remember any cars being stickered.

 

Miss Blakeley

20. Miss Blakeley had been the landlady of the Great Northern Inn for just short of 29 years from about 1984. She had her husband ran the pub together and lived there. She had known the Winterburns for some 25 years. She and her husband moved out in December 2012, but still live nearby. Because she lived at the pub she saw what was going on at the shop almost on a daily basis, and they shared customers. She was also a customer of the shop. She knew that Winterburns would drive over the access land to park their car on the parking space at the front of the shop. She had seen regular deliveries being received at the shop with the delivery vehicles stopped on the access land. She had seen customers on foot walking from the road over the access land. She had seen shop customers, as well as customers of other businesses and members of the Club parking on the whole of the car park, including access land. They would usually stop temporarily in order to pick up their food orders and take them away. Many years ago she remembered that a chain had been put across the car park at the back of the shop. She thought that was about 20 years ago. The chain had nothing to do with the shop, but had to do with her customers driving around the back of the shop into the Club car park. In cross-examination she amplified her evidence about the chain considerably. The chain was up for a couple of hours, not a couple of days. She knew the man who cut it. She was there when it went up and when it came down. It had not been put in her witness statement because she had forgotten. There had only ever been one chain. Everyone else was wrong about the time at which it had been put up. It was about 1990 to 1991. She was able to be sure of the date because she remembered the steward at the time (his name was Bruce Johnson), and the chain had always been directed at pub customers, not the shop. The club was open between 11 and 2pm on Sundays. The man who cut the chain was a club member. He had been blocked in and could not get out. He could not get out via the pub, because there was a post which prevented it. There was a key holder for the chain who lived only 5 minutes’ walk away. However, the man’s friend had provided bolt cutters, and he had cut the chain at about 4pm that afternoon. The only barriers across the entrance to the car park had been on club fun days, and they only had two of those in all. She did not remember the sign on the side of the building, perhaps because it had no significance to her, but she did remember the sign in the window of the Club. She had never heard of cars being ‘stickered’.

 

Mr Nicholson

21. The Applicants also relied on the witness statement of Mr Nicholson, who is a partner in a bakery and confectionary which for 28 years or more had supplied and delivered bread to the shop. He was responsible for deliveries, although he had only every made about 2 deliveries himself. He would have been aware of this drivers having any problems. His drivers use to pull into the access land, take approximately 5 or 10 minutes to unload the delivery, turn around in the car park, and leave. There had never been any difficulty over that until recently.

 

The Respondents’ evidence

Mr Smith

22. Mr Smith gave evidence for the Respondents. I have already summarised the contents of his two witness statements. With my permission, he amplified them somewhat in evidence in chief. Mr Smith described Saturday night, which was the busiest night of the week, when the Club used to have a concert. Late at night he would order taxis. The first time he ordered 4 taxis and none arrived. They said they could not get into the car park, and were on the main road. There were three or four cars from the fish & chip shop. He had words with Mr Winterburn about it at about 11pm. He said it was the club car park, not the shop car park and his members could not get out. Mr Winterburn said sorry, and he would see to it. It happened on numerous occasions, however, over the course of 6 or 7 years. There were 10 or 15 times that Mr Smith and his wife had words with Mr Winterburn about it. These were the rows mentioned in his witness statement. Mr Smith had been steward from March 1999. The chain went up within the first couple of weeks of his being there. The original chain had vanished. The one he put up was cut after 2 or 3 days. He put it up overnight. As to barriers, the first occasion on which they were sued was in the summer of 1999 for a club fun day one Sunday. They were also used on every bonfire night for a period of 7 years. There were fun-days once a year for about 5 years. There were also fund raising events, including 3 benefit concerts, at which they were used. Stickering happened twice, and only 2 or 3 cars were stickered. Mr Smith stopped it because he got the wrong cars.

 

23. In cross-examination Mr Smith described his role as accepting deliveries, the cleanness of the Club, running the bar, booking takings, ensuring the car park was tidy, locking and unlocking the premises, and security. His wife was a ‘spouse to assist’ . He reported to the club secretary. The committee left him to his own devices. The rows with Mr Winterburn mostly took place on Saturday nights, when the shop opens late. He would not have minded if the customers had parked their cars reasonably and left access for taxis. If club members and taxis could gain access, there would be no problem. The problem arose if the club was busy and shop customers blocked access. On the first occasion on which he and Mr Winterburn had words, he had said ‘it is the club car park, I’ve got taxis coming round and they cannot get in, and it is not on. Could you ask them to move.’ He was complaining about the way the cars were parked. There was no squaring off. At one point the Applicants had put a notice in their side window asking customers to park sensibly. It stayed up for about 6 weeks. He did think they took any notice. One could tell which cars were customers of the shop because one could see them coming in. How long they stayed depended on the queue on the shop. They would pull in, turn round, and park two abreast, blocking the access. Customers of other local businesses used the car park as well. By contrast with all of these, club members would park sensibly.

 

24. Mr Smith said that he had mentioned the car park problem to members of the committee after the second occasion, and said that something needed to be done about it. He understood that the committee had asked the Winterburns to donate to the Christmas party, but they refused. He could not remember when that was, but it could have been towards the end of 1999. They took no further steps. When he had put the chain up he had done so to stop cars going in at night. It was intended as a deterrent: this chain was looped round posts, and not locked. It kept disappearing. Mr Smith said he had not had anyone in particular in mind. He never found out who took the chain. He would take it off at about 8.30 or 9 o’clock in the morning. The barriers had been used to stop accidents occurring at social events, because there were a lot of children. They did not stop cars getting in.

 

Mr Crowley

25. Mr Crowley’s witness statement was very short, and plainly words were missing from the substantive part of it. I allowed limited examination in chief to correct that and to give dates. His evidence may be summarised as follows. He owed an adjacent business. The rear of his building was part of the boundary wall between the Club and the yard belonging to his business. At the side of his unit there was a metal post concreted into the ground that was used to chain off the Club car park to stop illegal parking. When he moved in in 1990 or 1991 the chain was used on several occasions. It was not permanent. After those several occasions, it was not used again. It was put up overnight, probably by the previous steward, to whom he had spoken about it.

 

Mr Kaine

26. Mr Kaine’s evidence was that in 1986 he was a prospective purchaser of the fish shop from the then owner, at which point it had no car parking facilities, although there was an informal arrangement to allow its customers to park temporarily in the Club car park, which on occasion caused problems for patrons of the Club and deliveries, so that the committee used a chain to fence off the rear of the shop, and signs were displayed in the Club windows to state that the parking was for Club patrons only. He explained in evidence in chief that the chain was only used once, in the evening, for the annual general meeting. The signs to which he referred were put up in about 1986 or 1987. He was not cross-examined.

 

The burden of proof

27. In making my findings of fact, I proceed on the basis that the burden of proof, on the balance of probabilities, lies upon the Applicants, both generally and in relation to the specific question of whether the user was as of right, and in particular, not by force. I have also to consider the extent and nature of the user of the car park, since that is what defines the extent of the prescriptive rights of any, to which the Applicants can lay claim.

 

Findings of fact

28. The fact of user of the car park by and on behalf of the Applicants for the minimum period of 20 years is admitted. The precise date upon which such user commenced is probably of no great significance, and there was not so much an issue about it, as uncertainty. Insofar as there was a question whether such use started in 1987 or 1988, I accept Mr Winterburn’s evidence that it started in 1987. It was accepted on all sides that such user ceased in May 2012 when Miss Crowley obstructed and then prevented it. I accept, and it was not challenged that the Applicants and their staff at the shop have throughout that period used the access way to obtain vehicular access to and from the parking space on the Applicants’ land, and had done so without restriction as to time or frequency. No evidence was directed to the particular extent of the access land over which vehicles passed in order to obtain such access, and in any case is seems to me that the whole and any part of it is more likely than not to have been being used to allow manoeuvres to position the vehicles for entry and exit from and to the highway.

 

29. The contention that the Applicants’ their customers, employees, suppliers and invitees had access to and from the Applicants’ land over the disputed land throughout the whole period from 1987 on foot was well evidenced and uncontentious, and I find accordingly. There was no defined route, and although no doubt people will have tended to take the most direct route, it seems to me more likely than not, depending the location of parked vehicles or other instructions, they will have passed as convenient across the whole of the disputed land without distinction. Again, I accept that the Applicants’ suppliers have up to 9 times a week pulled off the public highway onto the disputed land and stopped there for long enough to unload their deliveries, throughout the whole period. Finally, I accept that the Applicants’ customers have, at least during opening hours (as to the timing of which I make no finding) pulled off the highway to park on the disputed land (and indeed the whole of the car park), to purchase fish and chips (and no doubt all the usual related products) from the shop, and take them away. I accept, too, that some of them have on occasion stayed on the access land to eat their fish and chips, or start eating their fish & chips, in their vehicles; but that this was a practice which was rare and intermittent and discouraged by both the Applicants and the club.

 

30. I find that, although unrestricted as to duration, time, and location, user of the disputed land by vehicles of visitors to the shop did not prevent or substantially obstruct the use of the disputed land by the owners of that land (or of the car park generally) save towards the end of Saturday nights, which were busy nights for the Club until it closed in late 2008, when unreasonable and inconsiderate parking by shop customers caused obstructions from time to time. I reject the suggestion that the effect of use by customers or visitors to the shop caused the access way, or the car park generally, to be packed or unusable at any other times or in any other circumstances even at those times where inconsiderate and unreasonable parking had for a time obstructed access to the access way and car park on Saturday nights during that period, use of the access way on foot was not prevented.

 

31. At all times during the occupation of the Applicants, there was a sign on a building since demolished but adjacent to the left hand side of the disputed land as one enters from the highway, which was erected on behalf of the Conservative Club, and was in the following terms: “ Private car park. For the use of Club patrons only. By order of the Committee”. It was clearly visible to anyone entering the disputed land, whether on foot or by vehicle. It must have been seen by many of the people so entering the disputed land to go to the shop. There was a similar sign for a similar period in the window of the Club which was also clearly visible, although no doubt less so from the access land because further away. Neither the Applicants nor any of those utilising the access land for purposes connected with the shop took the slightest notice of those signs. Save as described below, no-one made any attempt to restrict use of the car park to Club patrons only, or to exclude the Applicants or their visitors.

 

32. I accept Mr Smith’s evidence in its entirety. I find that his duties as Club steward included managing use of the car park and access to the Club and making complaints of precisely the kind he described. Mr Winterburn was naturally concerned to minimise the hostility of his encounters with Mr Smith; but having heard Mr Smith I find that although not hostile, he will have made his complaints with emphasis, firmness, and clarity, and no doubt his wife will have done so too. I accept that he did so on the occasions which he described, and throughout the period of his stewardship from March 1999 to November 2008. I find that the nature of his complaint was an assertion that the car park belonged to the club, that the Applicants’ visitors had no right to park on it, and that they ought not to do so in such a way as to cause an obstruction to club patrons.

 

33. As the evidence came out, it became apparent that different witnesses were referring to difficult chains placed from time to time on the car park. The Respondents relied upon all of them.

(1) Mr Kaine had referred to a chain being used between 1986 and 1987. I accept that a chain was placed across the access land, but some way back from the highway, on one occasion, an evening, for the purposes of the annual general meeting. I find that it was utilised to prevent access from the highway beyond the train, not only on behalf of the customers of the shop, but any persons who otherwise might have utilised such access. There was no evidence that it was directed at the shop users, or that the shop was even open on that night.

 

(2) I also accept Mr Crowley’s evidence that the Club steward caused a similar chain to be put up overnight on several occasions between 1990 and 1991, and that it was not a permanent feature. That was plainly not directed at the shop either.

 

(3) I accept Miss Blakely’s evidence of a chain up in the afternoon in 1990 or 1991 which was cut by a club member after a few hours and not replaced (she is plainly wrong in thinking there had not been previous chains, however). I also accept that it was aimed at pub customers (parking on the car park and walking past the post to the pub, presumably) not the shop.

 

(4) I have already indicated, I accept Mr Smith’s evidence that he bought a new chain in 1999, which was utilised on three occasions and then disappeared, again, for the purpose of preventing overnight obstruction. I find that it, like the chain referred to by Mr Crowley, was intended merely to inhibit or prevent parking by anyone on the car park overnight, on those very few occasions. It was not directed at shop customers.

There is no countervailing evidence that these chains caused or were intended to cause the slightest inconvenience to any customer or supplier of the shop.

34. I accept that barriers were used from time to time on particular occasions, but they were not intended to prevent vehicular access, were not directed at customers or suppliers of the shop, and were merely for the purposes of safety at those events. Again, I accept that some few cars were stickered on 2 or 3 occasions, on behalf of the Club. There is, however, no evidence that the cars stickered were customers of the shop, although that was the intention.

 

User as of right, nec vi

35. On the basis of those facts, have the Applicants established the user was as or right and in particular not by force. I find that they have. As was said in Dalton v. Angus & Co (1881) 6App. Cas 740, 773,

“ The whole law of prescription… [rests] upon acquiescence… I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to use in respect of them; and 3, an abstinence on his part from the exercise of such power.”

 

 

It is in that context the question of force falls to be considered. The principle is helpfully summarised in Megarry & Wade, The Law of Real Property 8 ^th.ed., at 28-050 in the following way:-

 

“ Forcible user extends not only to user by violence, as where a Claimant to a right of way breaks open a locked gate, but also to a user which is contention or only allowed under protest. User is considered to be forcible ‘once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious’. If there is a state ‘perpetual warfare’ between the parties there can obviously be no user as of right. Similarly, if the servient owner chooses to resist not by physical beatings but by seeking legal redress, such as making unequivocal protests or taking legal action, the Claimant’s user can no longer form the basis for a prescriptive claim. A user is contentious when the servient owner is doing everything, consistently with his means and proportionately to the user, to contest and to endeavour to interrupt the user.” It is important to appreciate that user may become contentious even though the servient owner’s actions do not comprise an interruption within the Prescription Act 1832.”

 

 

36. In Lewis v. Redcar & Cleveland Borough Council (No. 2) [2010] UKSC 11 Lord Roger of Earlsferry JSC pointed out that the opposite of peaceable user is user which is, to use the Latin expression, vi; but it would be wrong to suppose that user is vi only where it is gained by employing some kind of physical force against the owner.

“ In Roman Law, where the expression originated, in the relevant contexts vis was certainly not confined to physical force. It was enough if the person concerned had done something which he was not entitled to do after the owner had told him not to do it. In those circumstances what he did was done vi… English law has interpreted the expression in much the same way…. if the use continues despite the neighbour’s protests and attempts to interrupt it, it is treated as being vi and so does not give rise to any right against him”.

 

Similarly, in Dalton v. Henry Angus & Co (1881) 6App Cas 740, 786, Bowen J. equated user nec vi with peaceable user and commented that a neighbour,

 

“ without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakable protests to destroy its peaceable character, and so annul one of the conditions upon which the presumption of right is raised: Eaton v. Swansea Waterworks Co (1851) 17QB267 in Field Common Limited v. Elmbridge Borough Council [2005] EWHC 2933, a decision of Lewison J., from paragraph 41 onwards, he held that what was relevant was the lack of protest by the servient owner. He cited Lyell v. Lord Hothfield [1914] 3KB 911, and Newnham v. Wilison [1987] 56 B&CR 8 as supporting the proposition that there may be vi once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word vi or force, such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner. Mr Walker, for the Respondents, laid some emphasis on the case of Lyell v. Lord Hoffield as being instructive in that case Sherman J. had said:

 

“There have been during these 60 years not infrequent disputes between the Shepherds, each asserting their own rights on the ground that the land belonged to the lord of their manor and not the lord of the other manor. During the time in question some Westmoreland sheep have fed in parts now settled to belong to Captain Lyell’s manor at the same time that sheep from the Ravenseat in Yorkshire were feeding on ground now settled to belong to Lord Hoffield’s manor. These disputes never seem to have led to blows or to legal proceedings, although there was evidence that one occasion one of Lord Hoffield’s tenants consulted a Solicitor, who wrote a letter. The conclusion I have arrived at is that the disputant farmers, finding that there was enough grass for all the sheep on the extensive wastes of the two manors, preferred in a sensible way to live in peace together and, as one witness said, to “let the higher powers decide” which was right”

 

 

In that case the learned Judge accepted that on those facts the pasturing of sheep was contentious.

 

37. Mr Walker for the Respondents relied upon the signs, the complaints, the chains, the barriers, and the stickering in support of his submission that the Applicants’ user had been contentious. Miss Shea, on the other hand, submitted that I should not accept Lewis v. Redcar as authoritative on the question, because the question of contention was not actually in issue in that case, and was not fully argued; and the case of Smith v. Brudenell-Bruce (below) had not been cited in it. The reference to Roman Law was, of course, only background to a discussion of the issue, and was not itself authoritative. I accept that submission. She pointed out, correctly, that in the Field Common case there had been a series of letters, culminating in a threat of legal proceedings, denying that the allegedly dominant tenant had the right claimed she submitted that in that case. The protest had amounted to allegation, therefore, that the dominant owner had no right to do what he was doing. She relied on the case of Smith v. Brudenell-Bruce [2002] 2P&CR.4, a decision of Pumfrey J., and in particular the passage at pages 57 to 59, which conclude with the passage which I have already set out, to the effect that user is contentious when the servient owner is doing everything consistent with his means and proportionately to the user to contest and to endeavour to interrupt it.

 

38. I accept that as the true state of the law. The Club’s signs were, in my judgment, inadequate to render user contentious. They predated the arrival of the Applicants, and were not specifically directed at them, but at the world at large. They were completely passive. I reject Mr Walker’s submission that they should be regarded in the light of a letter of objection being written and sent day after day. They were utterly ignored by those who even noticed them, the club was aware that they were utterly ignored, and took no additional steps to protest the user by the Applicants, save as described below, when it might easily have closed the car park altogether when it was not itself open (there being no evidence of any other rights of way over the car park), and policed its use to some degree while it was open. Mr Smith’s “rows” with the Applicants did indeed involve his asserting that the car park belonged to the club, and implicitly that the Applicants’ visitors had no right to be on it; but his objection was not to that, but to their parking inconsiderately so as to block access to the club. Apart from that, as he said, there was no problem. The club could, if he had chosen, have escalated the matter, by letter, or by Solicitors’ letter, or by Court proceedings, but took none of those steps, choosing on one occasion only to suggest that the Applicants might like to contribute to the Christmas party, a request which they also ignored. Nothing more was done. Contrary to the impression given by the witness statements (but not by the witnesses in oral evidence) the chains were not a protest of any kind against the Applicants’ user of the disputed land, but were directed to securing the car park overnight (save on one occasion when they were directed at the customers of the adjacent public house, but inconvenienced a club member). The barriers were for safety purposes alone. There is no evidence that any of the invitees of the Applicants even noticed the stickering of cars, which was in any case of negligible extent. The Applicants’ own signs were directed to discouraging their customers from using the car park to eat their fish and chips, rather than just to collect them. No such right is claimed, and the signs are therefore irrelevant to the claim that user was by force. Taken together, all these various features of the case do nothing to overcome the strong impression that reasonable user was entirely peaceful, and that contentious only arose when it blocked the access to the Club. No right to do so is claimed, nor does any such right follow from what is claimed. I therefore conclude that user was as of right, in relation to all the varieties of easement claimed by the Applicants.

 

Prescription

39. Subject to the question whether the rights claimed can amount to easements as a matter of law at all, the fact that there has been 20 years’ user as of right by and against the fee simple gives rise to the legal presumption of continuity of such use from time immemorial that is to say, 1189; and therefore to easements by prescription at common law. There is no evidence that the disputed land and the Applicants’ land ere ever owned in common. If it were not so, such easements would have come into existence by the legal fiction of lost modern grant, or under the Prescription Act 1832.

 

Capable or incapable of amounting to an easement

40. However, Mr Walker, for the Respondents contended that the rights claimed (customer parking, delivery parking) could not, as a matter of law, amount to easements in any event. The Applicants presented their claim as a right of way, with a right to load and unload, or a right to collect the Applicants’ products. In truth, he argued, the nature of their claim was to two rights: a right to drive into the disputed land and then back out again the same way (there being no terminus ad quem); and the right, having driven on to the disputed land, to park on it. The latter was the real substance of their claim and (as in fact the Applicants conceded) without it there would be no claim for a right to drive in and back out. On the authority of Batchelor v Marlow [2001] EWCA Civ 1051 he argued that there could be no prescriptive right to park as a matter of law, because such a right would deprive the Respondents of any reasonable use of their land (‘the ouster principle’). The case of Moncrieff v Jamieson [2007] UKHL 42, in which the House of Lords had held that in the law of Scotland a servitude right to park was capable of being constituted as ancillary to a servitude right of vehicular access (the test being whether it was necessary for the comfortable or effective use and enjoyment of the servitude) did not represent the state of the law in England and Wales; and was in any case to be distinguished on the facts, including the fact that it dealt only with ancillary rights, and ancillary rights to express rights; unlike the present case. Further, in the present case, the grant of the vehicular rights claimed would invoke the ouster principle. The area of land in question was confined and was located at the entrance to the Respondents’ land; and the rights claimed were unrestricted as to number of vehicles at any one time, unrestricted as to time of day or night, and unrestricted as to duration (and it was no help to the Applicants to say that customers only parked for as long as necessary to pick up fish and chips, because there was no limit on the succession or rotation of customers who might do so). This would render the Respondents’ ownership of the disputed land illusory. Similar points applied to the supposed delivery rights. Alternatively, the vehicular rights claimed amounted to no more than a jus spatiandi, to enter, roam around, and exit. The same applied to the pedestrian rights claimed (save that conceded over a narrow path directly from the highway to the shop). Such rights could not, he argued, be easements.

 

41. Miss Shea for the Applicants accepted that Batchelor v Marlow [2001] EWCA Civ 1051 represented the law but argued that it was distinguishable, and the ouster principle was not engaged on the facts. Although there were occasions on which the car park was packed, it was not packed exclusively by cars visiting the Applicants’ shop, and it only happened on limited occasions in any event. Even then, the Respondents were perfectly able to use their land on foot, to build over it, to run pipes under it and so forth. The Applicants were not claiming an exclusive right, but one enjoyed in common with all others with similar rights (although they were not claiming a right subject to the rights of the servient owner, of course). The nature and extent of the right established depended on the nature and extent of the user established, and they sought no more than that. If in the future the user exceeded that, the Respondents would have a remedy in the courts. She cited Bulstrode v Lambert [1953] 1 WLR 1064 as a case in which the Court found an implied right to park for as long as necessary to load and unload goods vehicles was ancillary to an express right of way; Hair v Gillman 80 P & CR 108 as a case in which a permission to park had ripened into an easement by virtue of Section 62 of the Law of Property Act 1925; and Kettel v Bloomfold [2012] EWHC 1422 (Ch) as a case in which each long leaseholder had respectively an exclusive right to use an identifiable car parking space, which was held not amount to a demise and not to offend the ouster principle.

 

42. I should start by considering the true nature and extent of the rights which could be established on the facts as I have found them. The rights depend on the user. I have found that the Applicants, their customers, employees, suppliers and invitees have had access on foot from the highway over the whole of the access land, without distinction, in order to reach and leave the Applicants’ land. That is not, as Mr Walker argues, a jus spatiandi: it is a right of way over the whole of the disputed land. It does not matter that any given pedestrian will not use the whole breadth of the disputed land on any given occasion. I have found that the Applicants have had access to and from the highway over the disputed land with vehicles to reach the parking space on the Applicants’ property. I have found that the Applicants’ suppliers have had access with vehicles to and from the highway over the whole of the disputed land without distinction up to 9 times a week in order to unload deliveries to the Applicants’ fish and chip shop. Finally, I have found that the Applicants’ customers have had access by car to and from the highway over the whole of the disputed land without distinction in order to go thence on foot to the Applicants’ property, collect their fish and chips, leave on foot to their car, and thence by car to the highway. The vehicular rights have been exercised as of right only in common with the owners of the Respondents’ land and all others entitled to the like rights, and only so as not to prevent access to the rest of the Respondents’ property. That is therefore the full extent of the rights so established.

 

43. Neither of the vehicular rights lacks a terminus ad quem: the terminus is the Applicants’ property. The right is vehicular between the highway and any part of the disputed land; and pedestrian between any part of the disputed land and the Applicants’ land. It involves a right to park the vehicle in question on the disputed land. I therefore reject Mr Walker’s arguments as to jus spatiandi and lack of a terminus ad quem.

 

44. Since this is the full extent of the rights so established, do the customer parking and delivery rights offend the ouster principle? That is, do they deprive the Respondents of any reasonable use of the disputed land? Not so. There is no scope for more than 9 such deliveries a week. The customers can only park to collect their fish and chips; and they can only do so in common with the owners of the Respondents’ land and all others entitled to park on the land, and only so as not to prevent access (vehicular as well as pedestrian) to the rest of the Respondents’ property. The Respondents are, moreover, perfectly able to use their land on foot, to build over it, to run pipes under it and so forth. Further, the right to park is merely ancillary to the right of customers to access the Respondents’ property for those purposes: the case is more akin to that of Bulstrode v Lambert than Batchelor v Marlow.

 

Cutting down or re-writing the easement

45. However, Mr Walker for the Respondents submits that as a matter of law the Adjudicator (or Judge of the First–tier Tribunal) cannot rewrite the terms of an easement sought to be registered, but can only either direct that the application to HM Land Registry be cancelled or granted, whether in whole or in part. He refers to Sections 73, 107 and 108 of the Land Registration Act 2002, and relevant rules. I am only to determine the matter referred to me, that is, the application and the objection, and not a different application and objection. Here, there is only one application, in the terms noted in paragraph 1 of this decision. I can either direct that it be granted or cancelled, but no more.

46. Miss Shea, for her part, points to the fact that under Rule 41 of the Adjudicator to HM Land Registry (Practice and Procedure) Rules the Adjudicator can require effect to be given to the original application in whole or in part, and with a condition that a specified entry be made on the register of any title affected.

 

47. The role of the Judge, or Adjudicator, is to determine the matters referred to him. Qualifying the easement sought to be registered, in the ways that I have indicated, forms part of such determination, in my view, and is not the determination of a different matter. (Moreover, it would be excessively inconvenient to the parties if it were otherwise, since presumably, if Mr Walker were right, the Applicants’ application would fail in its entirety and they would have to make a new one. That cannot be right.)

 

48. Finally, Mr Walker submits that there is no ‘jurisdiction on the evidence’ to restrict the easement in terms of time of day, duration or number of vehicles. However, in this decision I have attempted no such restriction; the qualifications which I have found applicable are all founded squarely on the evidence given.

 

Directions

49. The Applicants have therefore been successful, in the manner and to the extent set out above. The parties ought to be given an opportunity to consider and if possible agree the terms of the order to be made. I direct that any submissions as to that, and as to costs, should be submitted in writing within 21 days of the date of this decision; and that properly verified costs schedules of any party seeking to claim their costs of the reference be submitted at the same time.

 

ORDER

The parties’ submissions as to the terms of the order to be made, and as to costs, shall be submitted in writing within 21 days of the date of this decision, together with the properly verified costs schedule of any party seeking to claim their costs of the reference

 

 

21 ^st October 2013.

By Order of The Tribunal