NCN: [2015] UKFTT 151 (PC)
PROPERTY CHAMBER
FIRST –TIER TRIBUNAL 
LAND REGISTRATION DIVISION

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

LAND REGISTRATION ACT 2002

REF NO 2013/0536

BETWEEN
MICHAEL ANDREW BERG (1)
KAREN GILLIAN BERG (2)
Applicants
and

BRISTOL CITY COUNCIL 

Respondent

Property address: 2 and 4 Airport Road Knowle Bristol
Title Numbers: BL39536 and AV213060

Before: David Holland QC sitting as a Judge of the First Tier Tribunal

DECISION

Easement to park-whether 20 year user as of right-whether right claimed capable of being an easement.

STATUTES REFERRED TO: Sections 2 and 4 of the Prescription Act 1832.
TEXTBOOKS REFERRED TO: Gale on Easements.
CASES REFERRED TO: R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335; R (Lewis) v Redcar and Cleveland (No. 2) [2010] 2 AC 70; Betterment Properties v Dorset County Council [2012] 2 P&CR 3; Copeland v Greenhalf [1952] 1 All ER 809; London & Blenheim Estates v Ladbroke Retail [1992] 1 WLR 1278; Batchelor v Marlow [2003] 1 WLR 764; Moncrieff v Jamieson [2007] 1 WLR 2620; Virdi v Chana [2008] EWHC 2901; Safestore v RSN (19/10/09-Central London County Court, HHJ Cowell-transcript available on EGI); European Urban St Pancras v Glynn (11/11/11- Central London County Court, HHJ Dight- transcript available on EGI); Kettel v Bloomfold [2012] L&TR 30; Toomey v Gibbons [2014] UKFTT 0394 (PC) 

1.	This case arises from an application made by the Applicants, in form AP1, dated 6th February 2013 to register the benefit of a right of way with or without vehicles and a right to park vehicles, said to have been acquired by prescription, over part of a tract of land owned by the Respondent.

2.	The Applicants are the registered freehold proprietors, under title number AV213060, of the residential property at 4 Airport Road Knowle Bristol (“no.4”). The Respondent is the registered freehold proprietor, under title number BL39536, of all that neighbouring residential property at 2 Airport Road (“no.2”).

The proceedings in front of me

3.	 I visited the site on 3rd February 2014. I heard the case on 4th February and 22nd May 2014.

4.	I read statements and statutory declarations from both Applicants and from Mr Reginald Bourne who lives at No. 6 Airport Road. I heard live evidence from them. There was no evidence called on behalf of the Respondent.

5.	At the hearing before me, the Applicants were represented by Mr Parker and the Respondent by Mr Dunford. They both made written and oral submissions and referred me to a number of authorities.  Their submissions were succinct and helpful and I am grateful for them.

6.	By the end of the hearing, there were really two issues for me to decide namely whether:
i.	The Applicants had established the necessary 20 years user “as of right”.
ii.	Given the use which the Applicants had made of the relevant tract of land, the right they claimed was capable of being an easement.
As Mr Dunford accepted in his closing submissions, the principal issue was really that numbered (ii) above.

The site
7.	Both no. 2 and no. 4 front onto Airport Road to the south. The plot of no. 4 is roughly rectangular in shape with the two longest sides bordering no. 2 to the east and No. 6 Airport Road (Mr Bourne’s property) to the west. The four houses on numbers 2 to 8 Airport Road form a terrace. They are each set back from the road approximately one third of the way back into the plot. Thus each has a front garden or area but that at the rear (to the north of each house) is longer.

8.	No. 2 is at the eastern end of the terrace. The plot is triangular in shape with the base of the triangle bordering Airport Road to the south and the apex being at the northern end of the property. No. 2 borders no.4 for the entirety of its western side. The eastern side of the triangle that is no.2 borders an open lane or roadway (“the lane”). This tract of land is unregistered and no evidence as to ownership was put before me. The lane is irregular in shape and metalled or of compacted stone. At its southern end, it opens onto the junction of Airport Road and Wells Road. It runs in a northerly direction until it meets the rear gardens of certain of the houses in Ponsford Road to the north. It provides pedestrian and vehicular access to: no. 4 (as we shall see); two or three of the houses in Ponsford Road; the rear of the residential and commercial properties which front onto Wells Road to the east. Apart from the small tract of land with which I am concerned at the north western corner, the lane borders the garden of no. 2 for the entirety of its western edge.

9.	At the northern end of no.2 and the north eastern corner of no. 4 is the parking area with which I am concerned. It is roughly rectangular in shape and large enough comfortably to take 2 cars. It is surfaced with hard-core. It is open to the lane on its eastern side. It is enclosed with fencing on its southern and western sides and bounds the garden walls and fences of the properties on Ponsford Road to the north. The fencing on its southern side cuts the parking area (which is how I shall refer to it) off completely from the garden of no. 2 to the south. It also divides the parking area from the garden of no. 4 to the south and west. At the southern end of the parking area, where it abuts the fence and the garden of no. 2, there is a ramp or several shallow steps which lead up to a gate in the fence (at its south-western corner) which gate gives into the northern part of the garden of no. 4. Hence, whereas it is possible to access no. 4 from the lane and the parking area through this gate, it is not possible to access no. 2 from either this part of the lane or from the parking area.

10.	Although neither party produced either a survey or exact measurements, it appears that the parking area is situated: partially on the lane; partially on the northern tip of the triangle of no. 2; partially on the north-eastern corner of the plot of no. 4. So far as no. 2 is concerned, the parking area appears to occupy the very northern apex of the triangular plot. The area of no. 2 thus occupied (which I shall call “the triangle”) is in turn triangular with a base at its southern end of approximately 12 feet (I was told by Mr Berg) and tapering to a point at its northern end where it meets the rear garden of the property which appears to be 13 Ponsford Road.

11.	The issue before me is whether the Applicants have acquired the easement they claim over the triangle.

The relevant history
12.	At the end of the hearing, it was clear to me that there was no dispute of fact between the parties. As I have stated, I heard evidence from both the Applicants and from Mr Bourne. I found each of them to be a truthful witnesses. I accept their evidence.

13.	I thus find the relevant facts to be as follows.

14.	The Respondent became the registered freehold proprietor of no. 2 on 3rd May 1973. The property has been occupied by its tenants ever since.

15.	It is to be noted that the Respondent did not seek to argue before me that the fact that no.2 has been occupied by tenants (as opposed to directly by the Respondent) had any impact on whether the Applicants had acquired the rights they now claim over the triangle. 

16.	Mr Bourne bought and commenced occupation of No.6 Airport Road in 1974. He still lives there. He told me that, at that date, the rear (northern) parts of the gardens of no. 2 and no. 4 were overgrown. He drew me a rough diagram (“RB1”). There was, in particular, an earth bank or mound which cut the triangle off from the rest of the garden of no. 2. To the north of this earth bank the triangle was open to the lane on its eastern side but covered with brambles and weeds. It was used by local residents to dump waste. He told me that the garden of no. 2 effectively ended at the earth bank.

17.	Mr Bourne told me that, for many years until the Applicants bought no. 4, he used to assist the then owner of no. 4 to do her gardening and would gain access to her garden from the lane via the triangle and what is now the parking area.

18.	The Applicants purchased no. 4 in November 1991. They were registered as freehold proprietors on 29th November 1991. They have occupied no. 4 as their home ever since.

19.	 From when they first moved into no. 4 in November 1991, the Applicants have used the area of land which is now the parking area (including the triangle) to access the rear of their garden from the lane on foot.

20.	However in April 1992 the Applicants started carrying out work to their garden. This work also involved clearing the parking area (including the triangle) of vegetation and rubbish, digging it out and flattening it to allow two cars to be parked on it. They erected the fencing to no. 4, the steps and gate in their present position. This work was completed by “late summer” (Mr Berg’s words) 1992. From that time (which I take to mean late August 1992) onwards the Applicants have parked up to two cars continuously on the parking area. I say continuously but of course their cars have not been present at all times. Mr Berg works nights and his car would thus not be there at night. Mrs Berg’s car would not be there when she was out during the day. As I understand it, the Applicant’s daughter would also at times park a vehicle on the parking area.

21.	In 1994, with the help of Mr Bourne, the Applicants covered the parking area with hard-core material in order to facilitate its use.

22.	In 1999 or 2000 (they could not remember the exact date), the Applicants repaired the existing fencing and, having spoken to the then tenant of no. 2, erected the fencing which now separates the parking area from no.2.

23.	The Applicants have continued, since 1992, to park on the parking area and to use the gate for access to their rear garden. They have at all times gained access to the parking area by driving over the lane. They have never asked anyone’s permission to carry out any of the work. They have never sought or obtained anyone’s permission to use the lane, park on the parking area or use it for access.

24.	Until recently, no one else has, so far as the Applicants are aware, parked on the parking area. They have regarded it as their own exclusive parking area.

25.	The genesis of the present dispute appears to have been the letting by the Respondent of no. 2 to one Julie Ivey at some time in 2010. She, it appears, wished to acquire the freehold of no. 2 under the “right to buy” legislation and took issue with the Applicants use of the triangle. Arguments developed. Indeed, on some occasions, Mrs Ivey parked her own vehicle on the parking area. This was objected to by the Applicants who eventually, in mid-2012, erected a metal bollard and chain to prevent anyone but themselves from parking there.

26.	The dispute lead to correspondence some of which it is necessary to recount.

27.	Then first letter was dated 13th December 2011 and was from the Respondent addressed to the owner of no. 4. This stated:
“We are currently investigating a boundary issue concerning your property at no. 4 Airport Road and a Bristol City Council owned property at no. 2 Airport Road.
Please would you kindly provide us with any information or written evidence regarding the boundary of your property, including the hard standing at the rear of no.2.”

28.	The next letter is again from the Respondent. It is dated 5th January 2012 and is addressed to Mr Berg. It refers to a recent telephone conversation and states:
“We understand that you may believe that you have some right to the land following your improvement works. However, the H. M Land Registry plan no BL39536 (as attached) clearly shows that the land to the rear of the property is in the catchment of No.2 Airport Road. Furthermore any action taken to improve said land should have been done with the permission of the land owner Bristol City Council.
Unless you can provide evidence of your entitlement to this land or demonstrate your right to this, we would ask that you respect the wishes of Bristol City Council’s right to this land.”

29.	This lead to a letter dated 17th February 2012 from solicitors instructed by the Applicants this made a number of points as follows:
“1. Mr. and Mrs .Berg are the owners of 4 Airport Rod and since 1992 have used the small triangular section of land forming part of the garden of 2 Airport Road for vehicular access to their property and for parking purposes. At that time this small portion of garden was considerably overgrown and our clients cleared the trees and undergrowth to gain suitable access to their property. The land has been tidied up and improved
2. In late 1992 our clients fenced off the small triangular section from the remainder of the garden of No.2.
3 Since that time our clients have continuously used the area fenced off for vehicular access to their property and for the parking of motor vehicles to the exclusion of all other persons and without the licence or consent of the Council or any other person or persons.
4 Given the long period during which our clients have used the land without interruption and to the exclusion of all other persons, we have advised that there is sufficient evidence to satisfy an application to the Land Registry for registration of the land with possessory title in Mr. and Mrs. Berg’s name.
5. The required evidence can be given by statutory declarations made by Mr. & Mrs. Berg and by two other individuals.” (emphasis added)

30.	There followed a holding letter dated 5th April 2012 from the Respondent stating that instructions were being taken. Then on 23rd May 2012, the Respondent wrote a letter in which it said that instructions had been taken. The letter continued:
“It is clear from the Land Registry documents enclosed that your clients have no legal access from their property onto the lane to the side of 2 Airport Road. Our records indicate that neither property has any proprietary interest or rights over the lane, although we have no specific instructions in that respect.
The current situation seems to be that your clients have, at some point, fenced off a triangle of land belonging to 2 Airport Road (hereinafter “the triangle”) to gain access to their property from the lane and are regularly parking their car on the triangle. These acts give your clients no rights what so ever over the triangle. You will be aware that adverse possession can only be claimed in circumstances where the persons claiming adverse possession have exclusive possession of the land. The triangle is not enclosed and anyone could park a car there. The parking of a car or the erecting of a fence to enclose only part of the triangle will in no way satisfy the requirements of the Land Registration Act. Your clients for the purposes of the Act would also need to evidence an intention to possess, which is an intention to exclude the world at large including the owner of the paper title. The triangle is open and no one is excluded.
It is the City Council’s view that all your clients are doing by parking their car on the triangle is trespassing. Your clients cannot acquire property rights by acts of trespass. It is settled law that property rights cannot be acquired through the parking of a vehicle.
The occupier of 2 Airport Road requires the use of the triangle forthwith. Accordingly you should advise your clients that they are prohibited from parking on the triangle and any continuation of the parking will be an actionable trespass which will result in civil court proceedings, being issued against them. Your clients will, of course, be responsible for the City Council’s costs of any court proceedings necessary to stop this trespass. If after 10 days of the date of this letter, the trespass is continuing a claim will be issued against your clients without further notice. Please advise by return if you are instructed to accept service of proceedings.”
(emphasis added)

31.	This lead to a further letter from the Applicants’ solicitors dated 13th June 2012 in which they stated:
“At the very least our clients will have acquired a right of way by prescription over the triangle by use of the land to gain access to their garden for the past twenty years. The Council’s tenant has now parked her car on this land obstructing access to our clients’ property and this should be removed. Would you please inform the tenant of the position and require her to move the vehicle.”

32.	In a letter in response dated 20th June 2012, the Respondent stated:
“We will not be advising our tenant not to park on her land. She will be working with a Bristol City Surveyor in order to reinstate the original and lawful boundaries. If your clients wish to continue with their claim, we invite you to issue a claim supported by evidence without delay. We will, of course, be defending against that claim and will be seeking the costs of having to do so from your clients. In the absence of a claim, we will consider this matter closed.”

33.	Correspondence ensued until, on 23rd October 2012, the Respondent (as joint Claimant with Ms Ivey) issued proceedings against the Applicants (as Defendants) in the Bristol County Court (Claim No. 2BS03068) claiming:
i.	A Declaration that the triangle was lawfully owned by it; and
ii.	A Declaration that the Applicants had no easement to park over no. 2; and
iii.	Injunctions to compel the removal of any of their property on no. 2.

34.	By order dated 5th January 2013, those proceedings were adjourned generally pending the outcome of what has become (following the application to HM Land Registry) this case.

35.	I was informed on 22nd May 2014 that Ms Ivey has now vacated no. 2. However the matter has not settled and my determination is required.

Have the Applicants established the necessary 20 years user?
36.	In order to establish an easement by prescription under section 2 of the Prescription Act 1832 or under the doctrine of lost modern grant, the Applicants have to establish the requisite period of user “as of right” and without interruption. User as of right is described by the Latin phrase as user “nec vi, nec clam, nec precario” in English that is literally translated as “not by force, nor stealth nor the licence of the owner” (see Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335). It is perhaps more eloquently stated as follows:
“the user must be peaceable, open and not based on any licence from the owner of the land”
Per Lord Rodger in R (Lewis) v Redcar and Cleveland (No. 2) [2010] 2 AC 70 (at paragraph 87).

37.	There is no doubt that from November 1991, the Applicants have used the lane for pedestrian and vehicular access to no. 4 and that use has been as of right.

38.	In addition, from November 1991, the Applicants have used the parking area for pedestrian access to the rear of their garden at no. 4 and that use has been as of right.

39.	I find that from late August 1992 until the letter of 23rd May 2012, the Applicants had used the parking area as of right to park their vehicles.

40.	However it seems to me that, by the letter dated 23rd May 2012, the Applicants use of the triangle for parking ceased to be as of right in that it ceased to be peaceable. As set out above, apart from the odd occasion when Ms Ivey attempted to park her vehicle on the parking area, there has never been any physical impediment to the Applicants parking on the parking area. However, the authorities show that use which had previously been peaceable (or “nec vi”) can cease to be so without the use of physical force if it continues after sufficient protest has been made by the owner of the prospective servient land.

41.	The relevant authorities were reviewed recently by the Court of Appeal in the case of Betterment Properties v Dorset County Council [2012] 2 P&CR 3 (albeit in a case involving a town or village green). In that case they cited from paragraph 89 of Lord Roger’s speech in the Redcar case where he said:
“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.”

The Court also cited from an earlier judgment of Pumfrey J in Smith v Brudenell-Bruce [2002] 2 P&CR 51 in which he summarised the legal position (at paragraph 12 of his judgment) as follows:
“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.”

	The Court went on in that case to say (at paragraph 49) that:
“All the relevant authorities in this area proceed on the assumption that the landowner must take reasonable steps to bring his opposition to the actual notice of those using his land.”

42.	It seems to me that the letter dated 23rd May 2012 (and in particular the highlighted passage cited above) is more than sufficient in this context to render contentious any further use of the triangle for parking. The letter protests in the clearest possible terms and, in similarly trenchant terms, asks the Applicants to cease.

43.	 As the use as of right for parking commenced in late August 1992, the Applicants use ceased to be as of right after 19 years and 9 months continuous use.

44.	This of course means that they cannot establish any right under the doctrine of lost modern grant. This requires proof of continuous enjoyment as of right for a period of 20 years (see e.g. Gale on Easements (19th edition) at paragraph 4-08).

45.	However, it seems to me that the Applicants can establish the requisite period of user as of right under section 2 of the 1832 Act by reason of section 4 of that act. The effect of this is summarised in paragraph 4-55 of Gale in which the learned editors of that book state:
“Since an interruption is required by s.4 to be acquiesced in for one year, it follows that an enjoyment for a period exceeding 19 years which is then obstructed can be protected if proceedings are brought after 20 years have run and before the obstruction has lasted one year. If, however, the proceedings are brought before the 20 years have run, the claimant’s right is still inchoate and he has no protection by injunction or otherwise.

46.	This would appear to apply here. The interruption of the user (by the letter dated 23rd May 2012) came after 19 years and 9 months or so of user as of right. The 20 year period expired in or around late August 2012. The proceedings in the Bristol County Court were issued on 23rd October 2012. That date is after the 20 year period had expired but less than one year after the letter dated 23rd May 2012. Thus, the Applicants can rely on sections 2 and 4 of the Prescription Act 1832 to establish the necessary period of 20 years user as of right.

47.	To give him his due, Mr Dunford, by the end of his oral submissions, did not seriously suggest otherwise.

Is the right claimed by the Applicants capable of being an easement?
48.	The Respondent relies on what has become known as “the ouster principle” to submit that the right of way and to park being claimed by the Applicants is of such a nature as to be incapable of being an easement. The so-called principle is perhaps best stated in the Court of Appeal case of Batchelor v Marlow [2003] 1 WLR 764 when Tuckey LJ said (at paragraph 8):
“This followed the approach adopted by Judge Paul Baker QC in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, 1288 who, after reviewing the earlier authorities on car parking, said: 
“The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant.” (emphasis added)

49.	I have been referred to (and read) a number of authorities in this area: Copeland v Greenhalf [1952] 1 All ER 809; Batchelor v Marlow; Moncrieff v Jamieson [2007] 1 WLR 2620; Virdi v Chana [2008] EWHC 2901; Safestore v RSN (19/10/09-Central London County Court, HHJ Cowell-transcript available on EGI); European Urban St Pancras v Glynn (11/11/11- Central London County Court, HHJ Dight- transcript available on EGI); Kettel v Bloomfold [2012] L&TR 30; Toomey v Gibbons [2014] UKFTT 0394 (PC) (Judge Michell-available on the website of this Tribunal). I do not intend to cite from all of them in this decision.

50.	There seems no doubt now from the authorities that a right to park a vehicle within a defined area is recognised as capable of being an easement-see e.g. Gale at paragraphs 9-119 and ff and Moncrieff v Jamieson at paragraphs 24, 47, 75, 102, 137-140. However, there is still some debate as to the physical extent of the servient land that is necessary to enable an easement to arise: is a right to park a car for 24 hours a day seven days a week on a space that is only capable of accommodating one car capable of being an easement?

51.	Mr Denford for the Respondent submits that: (i) the appropriate test is that set out in Batchelor v Marlow and (ii) applying that test, the rights which the Applicants seek to claim would leave the Respondent without any reasonable use of the triangle. Thus, he submits, the Applicants cannot succeed as the right they claim is not capable of being an easement.

52.	He (entirely understandably) points to the assertion made in the letter dated 17th February 2012 that the Applicants had acquired possessory title and to the statement made in oral evidence before me by Mr Berg that he actually wanted to claim possessory title. He submits that because the Applicants have constantly parked on the triangle and indeed at one stage erected a bollard and chain to prevent anyone else from parking on it, they have effectively excluded the Respondent from having any use at all of the triangle. They have exclusive occupation of the land and thus they cannot have an easement over it.

53.	However well made these submissions were, I cannot accept them. I reject them essentially for two reasons.

54.	The first reason is that I am by no means sure that the test which the Court of Appeal applied in Batchelor v Marlow is the correct one. I accept that in subsequent cases (such as Virdi v Chana, Kettel v Bloomfold and Toomey v Gibbons) distinguished Judges at first instance have applied this test. Indeed in the first of these HHJ Purle QC went as far as to say, in relation to Batchelor v Marlow, that:
“it was not overruled and remains binding on me.”

55.	However, as these Judges have noted, the test applied by the Court of Appeal in Batchelor was subject to powerful criticism by the House of Lords in Moncrieff v Jamieson. In that case Lord Scott said this (at paragraph 54):
It has been argued that the rights of parking claimed by the pursuers in respect of the pink land deprive the defenders of any reasonable use of that land, are therefore inconsistent with their ownership of the pink land and should not be recognised as servitudal rights in rem that can bind them and their successors in title. This is the so-called “ouster” principle to which I have already referred. There are conflicting decisions and dicta regarding the “ouster” principle.”

	Having referred to some of these decisions, he concluded (in paragraphs 59-60):
“In my respectful opinion the test formulated in the London & Blenheim Estates case [1992] 1 WLR 1278 and applied by the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764 , a test that would reject the claim to an easement if its exercise would leave the servient owner with no “reasonable use” to which he could put the servient land, needs some qualification. It is impossible to assert that there would be no use that could be made by an owner of land over which he had granted parking rights. He could, for example, build above or under the parking area. He could place advertising hoardings on the walls. Other possible uses can be conjured up. And by what yardstick is it to be decided whether the residual uses of the servient land available to its owner are “reasonable” or sufficient to save his ownership from being “illusory”? It is not the uncertainty of the test that, in my opinion, is the main problem. It is the test itself. I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes. The claim in Batchelor v Marlow for an easement to park cars was a prescriptive claim based on over 20 years of that use of the strip of land. There is no difference between the characteristics of an easement that can be acquired by grant and the characteristics of an easement that can be acquired by prescription. If an easement can be created by grant it can be acquired by prescription and I can think of no reason why, if an area of land can accommodate nine cars, the owner of the land should not grant an easement to park nine cars on the land. The servient owner would remain the owner of the land and in possession and control of it. The dominant owner would have the right to station up to nine cars there and, of course, to have access to his nine cars. How could it be said that the law would recognise an easement allowing the dominant owner to park five cars or six or seven or eight but not nine? I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land. 
If, which as at present advised I regard as doubtful, Batchelor v Marlow was correctly decided, I can see some force in the defenders' arguments regarding the pink land. The use that the servient owner can still make of the pink land, if two cars are parked there, is very limited. But it is the servient owner, not the pursuers, who is in possession and control of the pink land and entitled to remain so. The pursuers are entitled to do nothing with the pink land other than park vehicles on it, while the defenders are entitled to do what they like with the pink land provided they do not interfere with the pursuers' right to park two cars there. For the reasons I have given I regard the “ouster” principle as inapplicable to this case” (emphasis added)

Lord Neuberger was sympathetic but more circumspect. He said (at paragraphs 140 and 143):
At least as at present advised, I am not satisfied that a right is prevented from being a servitude or an easement simply because the right granted would involve the servient owner being effectively excluded from the property. In this connection, the Privy Council in Attorney General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 , 617 appears to have held that a right to store materials on land could be an easement although it involved the dominant owner enjoying an “exclusive” right to enjoy the property concerned. Citing Dyce v Hay in support, the Privy Council immediately went on to observe that, in considering arguments as to whether a right could be an easement “The law must adapt itself to the conditions of modern society and trade”. Further, the Court of Appeal in Wright v Macadam [1949] 2 KB 744 held that an apparently exclusive right to store coal in a small shed was capable of being an easement. Neither case was cited to Upjohn J in Copeland v Greenhalf ….
Accordingly, I see considerable force in the views expressed by Lord Scott in paras 57 and 59 of his opinion, to the effect that a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive occupation, on the basis that the essential requirement is that the servient owner retains possession and control. If that were the right test, then it seems likely that Batchelor v Marlow [2003] 1 WLR 764 was wrongly decided. However, unless it is necessary to decide the point to dispose of this appeal, I consider that it would be dangerous to try and identify degree of ouster is required to disqualify a right from constituting a servitude or easement, given the very limited argument your Lordships have received on the topic.”

56.	These are powerful, if technically obiter, criticisms of the approach in Batchelor v Marlow. However, it seems to me that any problems fall away if one analyses what, if anything, was actually decided by the Court of Appeal in that case. If properly read, it becomes clear that the Court of Appeal was not deciding what the applicable test was. Rather the Court was applying, on the individual facts of that case, a test which had been agreed by the parties as being that which was applicable.

57.	I have already cited paragraph 8 of the judgment of Tuckey LJ in which he sets out the test applied by HHJ Paul Baker QC in the earlier first instance decision of London & Blenheim Estates v Ladbroke Retail [1992] 1 WLR 1278. In paragraph 9, Tuckey LJ continues:
“It was common ground before us that that was the essential question in this case and that there was no authority which provided the answer to it.”
	
Having then cited additionally Gale on Easements and Copeland v Greenhalf, Tuckey LJ continues (at paragraph 13):
“In view of the fact that the parties are agreed what the right question is and that the answer to it depends upon the facts of each case, I see no need to grapple with these arguments, other than to say that I think it is clear from his judgment that Upjohn J rejected the claim because the rights asserted were both uncertain and too extravagant”

58.	Thus, it seems to me that Batchelor v Marlow is authority for nothing. It was simply the application on the facts of that case of a test which had been agreed by the parties as applicable. There was no great debate as to whether it was the appropriate test. There was not even any ruling that it was the appropriate test. None was required as the parties had agreed it. I venture to suggest that Tuckey LJ would be surprised that anyone might subsequently refer (as they occasionally do) to “the rule in Batchelor v Marlow”.  The Court was not purporting to identify any such rule.

59.	As such I think that the proper test to apply is that set out by Lord Scott in the Moncrieff case, that is whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land. My view on this is fortified by the comments of the learned editors of Gale (at paragraphs 9-126) and by the ruling of HHJ Dight in the European St Pancras v Glynn case in which, having discussed both Batchelor v Marlow and Moncrieff v Jamieson, he states (at paragraph 40):
“It seems to me, having regard to that authority [i.e. Moncrieff v Jamieson] that although I must have regard to Batchelor v Marlow I should be careful in its application. The test applied in that case was one which had been agreed between the parties and applied by the Court of Appeal without confirming whether or not the test was correct.”

60.	My second ground for rejecting Mr Denford’s submissions however is as follows. Even if I am wrong, and the test to be applied is that set out in Batchelor v Marlow nevertheless, it seems to me that the right claimed by the Applicants can be, and is, an easement. Even if the proper test is whether or not the Respondent is left without any reasonable use of its land, nevertheless I find that it retains a reasonable use, if not for parking, then for other possible uses.

61.	I am prepared to assume that the right being claimed by the Applicants includes the right to park up to two motor vehicles on the parking area (which is large enough only to accommodate two vehicles at one time) for up to 24 hours per day seven days per week. Applying the same test as applied in Batchelor v Marlow, one might assert that this deprived the Respondent of any reasonable use of the surface of the triangle for most of the time. However, as the more recent cases illustrate, it cannot in my view be said that this leaves the Respondent without any reasonable use of the triangle at all any more than the owner of the coal shed is left with no reasonable use of that (see Wright v MacAdam [1949] 2 KB 744) or the owner of the land through or over which the aqueduct passes is left without any reasonable use of his land (see Moncrieff v Jamieson at paragraphs 24, 54 and 76).

62.	In Virdi v Chana (a case with some factual similarity to this case), HHJ Purle QC agreed with Deputy Adjudicator that the fact that the servient owner could:
“plant a trellis close to the fence (so long as it does not prevent parking)…place bicycles on this land…alter the surface, replace and repaint the fencing”
	
meant that he was not left without any reasonable use of the land over which the right to park was asserted in that case.

63.	In Kettel v Bloomfold HHJ David Cooke applying the same test as applied in Batchelor v Marlow said this (at paragraphs 22 and 23):
“I do not believe that an easement is excluded…the rights exercisable by the defendant over the space cannot be said in the circumstances of this case to leave him with no reasonable use of the land and so make his ownership of it illusory. 
I approach this from the starting point that the defendant may do anything that a freeholder could normally do, except to the extent that it is excluded by the terms of the right granted in the lease, i.e. except to the extent that it would be inconsistent with the express right to park a car, together with any terms to be implied as a normal matter of construction. Thus the defendant may pass on foot or by vehicle across the space freely if there is no vehicle parked on it for the time being or avoiding one that is. He may authorise others to do likewise (and has done so in the other estate leases). He may choose, change and repair the surface, keep it clean and remove obstructions (and is obliged to do so in providing the Services). He may lay pipes or other service media under it, as he may wish to do for the benefit of the estate buildings. He may in principle build above it (as is proposed under the crash deck scheme) or provide overhead projections such as wires.”

64.	This passage and these various considerations were applied with approval by Judge Michell in the Toomey v Gibbons case (see paragraph 38 of the Decision in that case).

65.	I find that similar considerations apply here. Despite the use of the surface of the triangle for most of the time for exclusive parking of up to two vehicles by the Applicants, nevertheless, the Respondent can still (if it so chooses):
a.	Alter the surface of the triangle (as long as it can still be used for parking);
b.	Clear obstructions which would prevent access or parking;
c.	Access and cross it on foot or with cycles.
d.	Lay pipes or cables underneath it;
e.	Place structures, projections or cables above it;
f.	Even remove the fence between it and no. 2 and incorporate it into that property’s garden (provided of course that both it and its tenants continue to allow the Applicants exclusively to park on it).
Whilst it is clear that the Applicants right greatly restricts the use or uses to which the Respondent can put the triangle, nevertheless it cannot be said that this right leaves the Respondent without any reasonable use of its land.

66.	This is even more the case if, as I think is right, the applicable test is that set out by Lord Scott in Moncrieff v Jamieson. Despite the occasional assertion by the Applicants as to their subjective intention to take possession, I think that I have to judge their actions objectively. Thus whatever they might have said, I think that nothing which the Applicants have done has deprived the Respondent of possession or control of the triangle. Lord Scott’s test is more generous to the would-be dominant owner and, for the same reasons set out above, I do not think that (when the behaviour giving rise to it is objectively judged) the right asserted can be said to be so excessive as to be incapable of being an easement.

Conclusion
67.	For the reasons set out above, I find for the Applicants. I will direct HM Land Registry to allow the Applicants Application to register the rights they seek.

68.	So far as costs are concerned, at the moment I can see no reason why costs should not follow the event in the normal way. However, if the Respondent wishes to persuade me that I should make a different order, then I give it permission to make written submissions to me within 21 days of the date of this decision.

69.	If no such submissions are made, then I will order the Respondent to pay the Applicants’ costs of the proceedings to be subject to assessment. I shall make such an order without further hearing. If the Respondent does file and serve written submissions, then I give the Applicants a further 14 days in which to file written submissions in response. Thereafter, I will make a decision on the incidence of costs without a further hearing.

70.	At the same time, I will order that any party who wishes to claim costs from the other must, within 21 days of the date of this decision file and serve a Schedule of costs in the form normally used for summary assessment. Once I have decided the incidence of costs, I will summarily assess the amount. I will give any party ordered to pay costs to the other a further opportunity to make submissions on the amount of any costs claimed.

Dated this Tuesday 3 June 2014

By Order of The Tribunal