Peter Nigel Joseph Stenner v Teignbridge District Council

This is an appeal against an order of the First-tier Tribunal (“the Order”) dated 30^th October 2024, by which the First-tier Tribunal (“the FTT”) ordered the Chief Land Registrar to cancel the Appellant’s application for registration of the benefit and burden of an easement claimed by the Appellant.

The easement claimed by the Appellant (“the Disputed Easement”) related to part of a car park, in the ownership of the Respondent, known as Lower Point Car Park, Teignmouth, Devon. The Disputed Easement comprised an alleged right, acquired by prescription, to store boats and related equipment on the relevant part of the car park, and to carry out maintenance on the boats, every year during the period from 1^st October through to 31^st May.

The Appellant applied for registration of the benefit and burden of the Disputed Easement on 14^th September 2021. For the reasons set out in a decision dated 30^th October 2024 (“the Decision”) the FTT decided that the Appellant had failed to establish the Disputed Easement and accordingly, by the Order, directed the cancellation of the Application.

The Appellant appeals against the Order with the permission of the Upper Tribunal (Lands Chamber) granted on 24^th February 2025.

On the hearing of this appeal (“the Appeal”) Mr Petts, counsel, appeared for the Appellant. Mr Ball, counsel, appeared for the Respondent. I am grateful to both counsel for their assistance, by their submissions, in my determination of the appeal.

References to Paragraphs in this decision, without more, are references to the paragraphs of the Decision. Italics have been added to quotations.

The Respondent is the registered freehold proprietor of a substantial area of land which is located on a peninsula of land where the River Teign runs into the sea, which I believe is known as the Point, Teignmouth, Devon. Title to the Respondent’s land is registered under title number DN496449.

Part of the land in this title comprises the car park known as Lower Point Car Park (“the Car Park”). Also within the curtilage of this land is a row of beach huts, facing an area of beach and the sea, which are registered under separate titles. The Appellant is the registered freehold proprietor of three of these beach huts, known as Hut 41, Hut 42 and Hut 34. I will refer to these three beach huts as “the Appellant’s Beach Huts”.

The land in respect of which the Disputed Easement is claimed comprises a small area of land within the Car Park, roughly triangular in shape and located on the western side of the Car Park, close to the row of beach huts and the beach. The FTT referred to this triangle of land as the Boat Storage Area. I intend no criticism of the FTT in preferring to use the more neutral expression “the Triangle” to refer to this triangle of land.

The FTT found that there was space for up to four cars to park within the area of the Triangle. I was told that the Car Park itself has capacity for around 34 cars.

The Appellant’s case, at the hearing before the FTT, was that he had run a local boat hire business (“the Business”), from the Appellant’s Beach Huts, since 1982. The Business was seasonal; with the summer holiday season running from the beginning of May until late September, and the off season running from October to the start of May. During the summer season the boats hired out by the Business were kept on moorings when not in use. The Appellant’s evidence was that during the winter months (meaning in this context from 1^st October to 31^st May in each year), and since 1982, he had used the Triangle to store up to six boats used by the Business, with related equipment, and to carry out maintenance and repairs on the boats.

The Appellants’ case was that he had acquired, by prescription and for the benefit of the Appellant’s Beach Huts as the dominant tenement, the following right over the Triangle; namely a right to store up to six boats and related equipment on the Triangle, and to carry out maintenance on those boats. It is important to note that this right was not claimed on the basis that it was a continuous right. The right was claimed on the basis that it was a right which had effect during the winter months; meaning in this context the period from 1^st October to 31^st May in each year. I will refer to this period of months as “the Relevant Period”.

It is this claimed right which I am referring to as the Disputed Easement.

The Respondent contested the claim to the Disputed Easement on a number of grounds. For present purposes it is not necessary to go through the findings of fact made by the FTT, which heard evidence from five witnesses on behalf of the Appellant, in addition to the Appellant himself, and from one witness on behalf of the Respondent. Instead, it is sufficient to summarise the findings and decisions of the FTT on the principal grounds of dispute.

The FTT found that the Appellant had established continuous yearly use of the Triangle, since 1982, for the storage of up to six boats during the period from October to May. The FTT summarised its findings on the question of whether there had been continuous use and on the question of whether there had been a cessation of use, sufficient to interrupt the period of prescription, in the following terms at Paragraph 30:

“30.

I consider that the question of continuity and cessation must be viewed in the context of the right claimed, which operates from October to May. It was accepted that a prescriptive easement is capable of being seasonal, and by its nature the continuity required is within that period, not all year round – there can be no cessation of user outside that period. It is possible that user might cease at some point, but that is true of any easement in the process of acquisition by prescription. It would only be if there was a cessation during the winter months that there would be a break in the necessary continuity, and in the present case there is no evidence of that.”

The FTT was satisfied that the Appellant’s use of the Triangle had been as of right, and had not been by force, or in secret, or by the permission of the Respondent; see Paragraphs 31-36.

The FTT was satisfied that there had been a capable grantor (the Respondent) and a capable grantee (the Appellant) in respect of the Disputed Easement; see Paragraphs 37-41.

The FTT rejected the argument that the exercise of the Disputed Easement would constitute a public nuisance in respect of the Triangle; see Paragraphs 42-44.

The FTT then came to the question of whether the four conditions for the recognition of a right as an easement were satisfied; namely (i) there must be a dominant and a servient tenement, (ii) the easement must accommodate the dominant tenement, (iii) the dominant and servient owners must be different persons, and (iv) the easement must be capable of forming the subject matter of a grant.

The FTT was satisfied that the first three of these conditions were satisfied. The Appellant’s Beach Huts were the dominant tenement. The Triangle was the servient tenement. The rights over the Triangle claimed by the Disputed Easement did accommodate the Appellant’s Beach Huts as the dominant tenement. The Appellant’s Beach Huts and the Triangle were, respectively, in different freehold ownership.

This left the question of whether the Disputed Easement was capable of forming the subject matter of a grant. The FTT considered this question at Paragraphs 52-66. I will need to come back to the reasoning of the FTT later in this decision. For present purposes, I can summarise the reasoning of the FTT in the following terms.

The FTT commenced its analysis, at Paragraph 52, by identifying the issue which it was required to consider in this context, referred to as “the ouster issue”:

“52.

As to requirement (4) – the easement must be capable of forming the subject-matter of a grant – this involves consideration of easements of storage and parking, and what has become known as the ouster issue: that the right cannot be so extensive or invasive as to oust the servient owner from the enjoyment or control of the servient tenement.”

The FTT then proceeded to review relevant case law. On the basis of this case law the FTT identified the question which it had to answer in the following terms, at Paragraph 59:

“59.

Both counsel accepted that Moncrieff v Jamieson did not overrule Batchelor, which remains binding in the High Court and on this Tribunal, and it is the relevant test that I should apply – if the Beach Huts have the benefit of a right to store up to six boats in the Boat Storage Area during the winter months beginning 1 October through to 31 May each year, will TDC be left without any reasonable use of the Boat Storage Area?”

The FTT found, at Paragraph 60, that the answer to the question posed in Paragraph 59 was yes. If the Appellant’s Beach Huts had the benefit of the Disputed Easement, the Respondent would be left without any reasonable use of the Triangle. The FTT stated this finding, and its reasons for this finding in the following terms:

“60.

For the following reasons I find that this is the case. Copeland v Greenhalf is the most similar case on its facts, which concerns storage rather than the parking of vehicles and in which some space was left for access. That is the case here for the period October to May during which the storage of six boats, leaving no room for anything else, would give Mr. Stenner exclusive use of the Boat Storage Area during that period. Mr. Palfrey sought to distinguish Copeland on the basis that Mr. Stenner’s use is only for part of the year, but the period is of 7 to 8 months which is a substantial part of the year. Unlike parking cars, the storage is not intermittent or restricted to certain times or days of the week. Once boats have been put in the Boat Storage Area their storage is continuous until they are moved back to moorings at the beginning of the season the following year, save for occasions when a boat needs to be taken elsewhere for specialist repair work. It is correct that TDC can use the Boat Storage Area as car parking space during the summer months, but no easement is claimed during that period.”

The FTT thus concluded that the Disputed Easement was not capable of forming the subject matter of a grant.

The FTT was not persuaded by the argument of the Appellant’s counsel that Copeland v Greenhalf[1952] Ch 488 could be distinguished. As the FTT explained, at Paragraphs 61 and 62:

“61.

Mr. Palfrey also sought to distinguish Copeland on the basis that there are other uses to which the Boat Storage Area can be put during October to May and significant rights that could be granted by TDC such as painting lines over or resurfacing the Boat Storage Area. In my view, with six boats, perhaps even fewer, stored in the Area it would not be possible to paint or resurface; such matters would have to wait until the boats were removed.

62.

There is, of course, the possibility of TDC granting a licence for the storage of gigs in the Boat Storage Area, as was done with the rowing club, but during the period October to May any such licence could not be exercised as there would be no space available due to the presence of the boats. As mentioned above, this is exactly what happened with the gigs, which were placed outside the Boat Storage Area when the boats were moved into it.”

At Paragraph 63 the FTT went on to consider some further case law, postdating the decision of the Court of Appeal in Batchelor v Marlow [2001] EWCA Civ 1051. The FTT did not consider this further case law to be particularly relevant, for the reasons explained in Paragraph 63:

“63.

Mr. Palfrey provided several post-Bachelor cases. To a certain extent they turn on their own facts, and largely concern rights to park, which in my view are rather different from a right to long-term storage such as that under consideration here. Nevertheless, the following should be mentioned.”

The FTT’s analysis of this further case law, and its findings are set out in Paragraphs 64-66:

“64.

A right to park likely cannot subsist as an easement if part of the servient land is to be occupied for a continuous period of 72 hours to the exclusion both of the freeholder and of all others having a like right (Montrose Court Holdings Ltd and ors v Shamash and ors [2006] EWCA Civ 251, Lord Justice Chadwick, para 30). In the present case, apart from the spaces between the stored boats, the servient land will be occupied by boats for a continuous period considerably longer than 72 hours.

65.

An easement to park a car in two parking spaces in a car park is effective where the servient owner can walk across the car park, or another car can back into a “used” part of the land when coming out from another space, or the servient owner can change the surfacing or erect and advertising board or fencing (De La Cuona v Big Apple Marketing Ltd [2017] EWHC 3783 (Ch), Newey J, para 22). Here, motorists who park their cars in the Car Park can use the spaces between boats to cross the Boat Storage Area to get to and from their cars, but this is not required as it is open land and other access is available to the Car Park on foot. Concerning fencing, none could be erected within the Boat Storage Area while boats are stored there.

66.

There have been occasions when all or part of a car has parked within the Boat Storage Area – for example, when Mr. Stenner was issued with a parking fine – but the evidence did not establish this was anything other than occasional and in my view could not take place when six boats were stored within the Area.”

On the basis of the decision of the FTT that the Disputed Easement was not capable of forming the subject matter of a grant, the Appellant’s claim to the Disputed Easement failed; see Paragraph 67.

There are three grounds of appeal, as follows.

The first ground of appeal (“Ground 1”) effectively comprises four grounds or sub-grounds of appeal, which I will refer to as “Ground 1(a)”, “Ground 1(b)”, “Ground 1(c)” and “Ground 1(d)”.

So far as Ground 1 is concerned, the FTT asked itself the following question, at Paragraph 59:

“Both counsel accepted that Moncrieff v Jamieson did not overrule Batchelor, which remains binding in the High Court and on this Tribunal, and it is the relevant test that I should apply – if the Beach Huts have the benefit of a right to store up to six boats in the Boat Storage Area during the winter months beginning 1 October through to 31 May each year, will TDC be left without any reasonable use of the Boat Storage Area?”

The Appellant contends that the FTT went wrong in answering this question in the following ways:

The second ground of appeal (“Ground 2”) is that the FTT was wrong to disregard the effect of the temporal nature of the Disputed Easement on the Respondent’s enjoyment of its land. The Appellant relies upon the decision of the Court of Appeal in P&S Platt Ltd v Crouch [2003] EWCA Civ 1110 [2004] 1 P&CR 18 to contend that, in the present case, the temporal nature of the use of the Triangle means that such use is not capable of depriving the Respondent of any reasonable user of the Triangle.

The third ground of appeal (“Ground 3”) refers to the following statement of Chadwick LJ in Montrose Court Holdings Ltd v Shamash [2006] EWCA Civ 251, at [30]:

“30.

I would add that I am not persuaded that a right to park can subsist as an easement if part of the serviced land is to be occupied for a continuous period of 72 hours to the exclusion both of the freeholder and of all others having a like right. But it is not necessary to decide that point on this appeal. It is enough to say that the regulation was properly made in relation to the temporal limitation as well as in relation to the numeric limitation to one vehicle at a time.”

The Appellant’s case is that the FTT was wrong, at Paragraph 64, to place any reliance on this statement in finding that the Respondent would be left without any reasonable use of its land, let alone so as to make its ownership of that land illusory.

The application for registration of the benefit and burden of the Disputed Easement failed by reason of the FTT’s analysis and application of what was referred to as “the ouster issue”; see Paragraph 52 (quoted above).

The ouster issue referred to one of the requirements which must be met if a right claimed by way of an easement is to be capable of forming the subject matter of a grant. The origin of this ouster issue, or ouster principle as it is sometimes referred to, can be traced back, at least so far as the authorities cited to me were concerned, to the decision of the House of Lords in Dyce v Hay (1852) 1 Macq 305 HL (SC). This was a Scottish case involving a claim to a prescriptive right for the public at large to use a strip of land for the purpose of recreation. The right claimed was a public right rather than a servitude; a servitude being a Scottish right with similarities to an easement under the law of England and Wales. In his opinion on the case the Lord Chancellor, Lord St Leonards, stated that the right was one which could not be maintained and ought not to be maintained. The sidenote to the report states as follows:

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

While this is a statement in the sidenote to the report, it is derived from what was said by Lord St Leonards in his opinion, in particular at 309:

“What is insisted upon, therefore, is of this extensive nature, that the Pursuer claims as an inhabitant, but, in fact, on behalf of all the Queen’s subjects, the right to go at all times upon the inclosed soil of a portion of the Appellant’s property near the mansion-house, for the purposes of recreation just as they think proper. Now, that I conceive is a claim so large as to be entirely inconsistent with the right of property; for no man can be considered to have a right of property, worth holding, in a soil over which the whole world has the privilege to walk and disport itself at pleasure.”

A more recent articulation of the ouster principle, as it has been called, can be found in the judgment of Judge Paul Baker QC, sitting as a Judge of the High Court, inLondon & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 [1993] 1 All ER 307. The case was concerned with a transfer of land which had included the grant of a right to park cars on retained land of the transferor. The principal issue in this case was whether the benefit of this right of parking could be claimed in relation to additional leasehold land which was not part of the originally transferred land, as against a successor in title of the original transferor, as owner of the retained land. The issue arose because the grant of the right of parking was expressed to extend to subsequently acquired land, subject to the conditions set out in the transfer. The judge decided that the right could not be claimed for the benefit of the additional leasehold land. This was sufficient to decide the case, but the judge also went on to consider the remaining issues in the case, which included the question of whether the right to park granted by the transfer could exist as a valid easement.

Following a review of the authorities cited to him on this issue, the judge concluded that the right to park cars could amount to an easement. In answering the question of whether a right to park cars did qualify as an easement, the judge stated the ouster principle, and its application in the case before him, in the following terms, at 1288C-D (the underlining is my own):

“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. The rights sought in the present case do not appear to approach anywhere near that degree of invasion of the servient land. If that is so—and I emphasise that I have not gone into the facts—I would regard the right claimed as a valid easement.”

I should mention that the decision of Judge Paul Baker was appealed to the Court of Appeal. The appeal was however dismissed and in his judgment, with which Beldam and Ralph Gibson LJJ agreed, Peter Gibson LJ dealt only with the issue of whether the right of parking granted by the original transfer could extend to the subsequently acquired leasehold land. For the reasons given in his judgment Peter Gibson LJ concluded that the right could not extend to the leasehold land, which was sufficient to dispose of the appeal.

The application of the ouster principle has not proved to be straightforward in the case law. The position is summarised in the following terms by the editors of Gale on Easements, Twenty-Second Edition, at 1-72:

“The question of whether the right granted or claimed by prescription is too extensive to be an easement has been considered in a large number of decided cases. Unfortunately, the law is not clear and precise as to the boundary between a right which can be an easement and a right which is too invasive of the rights of the owner of the land to be an easement.”

The ouster principle has often been engaged in cases involving claims to easements of parking or storage; where the relevant use has involved something being brought on to the servient land and located there. As Mr Ball pointed out, in his submissions, it is in cases of this kind that one is most likely to find that the exercise of the right involves the effective exclusion of the owner and others from the servient land. This falls to be contrasted with the exercise of a right such as a right of way, where the exercise of the right of way should not normally result in the effective exclusion of the owner or other users from the servient land.

In Attorney General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 the Judicial Committee of the Privy Council expressed the opinion that a right to store goods on the land of another could be created as an easement. The judgment of the Committee was delivered by Lord Shaw. In the course of the judgment, at page 617 of the report, Lord Shaw rejected the argument of the Crown that an easement of storage was unknown to the law:

“Their Lordships see no reason why upon the first point a right of easement should be exclusive of the storage claim. The law must adapt itself to the conditions of modern society and trade, and there is nothing in the purposes for which the easement is' claimed inconsistent in principle with a right of easement as such. This principle is of general application, and was so treated in the House of Lords in Dyce v. Hay (1) by Lord St. Leonards L.C., who observed : " The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind."”

This recognition of the ability to create an easement of storage was repeated in Wright v Macadam. The case was concerned with the use of a shed in the garden of a property. With the permission of the defendant landlord, the first plaintiff, as tenant of the top floor flat in the property, had used the shed for the storage of coal. The defendant granted a new tenancy of the flat to the first plaintiff and her daughter, the second plaintiff. When the defendant sought to charge the plaintiffs for the use of the shed, they claimed that their tenancy included a right to use the shed for the storage of coal.

The question before the Court of Appeal in Wright v Macadam was whether a formal right to use the shed for the storage of coal had passed to the plaintiffs, on the renewal of the tenancy, by virtue of the operation of Section 62 of the Law of Property Act 1925. The principal judgment in the Court of Appeal was given by Jenkins LJ, with which Singleton LJ agreed. Tucker LJ delivered a short concurring judgment. One of the matters dealt with by Jenkins LJ in his judgment was whether a right or easement of the kind claimed, that is to say an easement of storage, was one which could be included in a lease or conveyance. Jenkins LJ saw no difficulty in this respect. As he stated, at page 752 of the report:

“Next, the right was, as I understand it, a right to use the coal shed in question for the purpose of storing such coal as might be required for the domestic purposes of the flat. In my judgment that is a right or easement which the law will clearly recognize, and it is a right or easement of a kind which could readily be included in a lease or conveyance by the insertion of appropriate words in the parcels. This, therefore, is not a case in which a title to a right unknown to the law is claimed by virtue of s. 62.”

The ouster principle does not appear to have been raised in Wright v Macadam. Nor does it appear to have been in dispute that an easement of storage could be created. So far as I can see, the argument for the defendant landlord in this context was that the right which was claimed was too uncertain, as opposed to a right which left the defendant without any reasonable use of the shed or such part of the shed as had been used for the storage of coal by the first plaintiff. Jenkins LJ rejected the argument based on uncertainty, in the following terms, at page 753 of the report:

“Mr. Borders for the defendant sought to rely on the fact that there was no precise evidence as to the mode in which the right was to be enjoyed. The particular point he took was that there was no evidence as to the means of access by which the tenants were to go to and from the coal shed when they had occasion to put coal in or take coal out. In my judgment that has no effect on the conclusion. Mr. Macadam admitted in his evidence that he gave permission for the coal shed to be used, and he admitted that it was still being used in fact on August 28, 1943. In my judgment the right must be regarded as carrying with it the necessary means of access, and it must be assumed that at all times down to August 28, 1943, Mrs. Wright enjoyed the use of the coal shed together with the necessary access to it and from it.”

As Mr Ball pointed out, the report of Wright v Macadam does not provide any particulars of the way in which the first plaintiff had made use of the shed for the storage of coal. As I have said, it does not appear to have been argued, for the defendant, that the defendant was left without any reasonable use of the shed or such part of the shed as had been used for the storage of coal.

I can now move to a case where the ouster principle was fully engaged. In Copeland v Greenhalf the plaintiff was the owner of an orchard and adjoining house. Access to the orchard was obtained by a strip of land, also owned by the plaintiff, which was about 150 feet long, and of varying width. The defendant was a wheelwright, whose premises were opposite to the strip of land. The plaintiff sought to restrain the defendant from placing and leaving vehicles on the strip. The defendant claimed a right, on the basis of prescription, to store customers’ vehicles, awaiting or undergoing repair, along the strip, leaving only a space for access to be obtained to the orchard.

As Mr Petts stressed to me, the rights asserted by the defendant to have been acquired in Copeland v Greenhalf were very extensive. The relevant pleading of the defendant’s case was in the following terms:

“For a long time namely for 50 years and upwards before this action the defendant and his predecessors in title to the said house and workshop have by virtue of a deed of grant made unto them by the predecessors in title of the plaintiff who were then seised in fee simple of the plaintiff's said strip for the estate the plaintiff now has (but which deed has since been lost or destroyed by accident) enjoyed the right to place deposit and store and if necessary repair upon the plaintiff's said strip along the south-east side thereof alongside the wall or fence there and so as not to extend beyond a distance of 8 ft. 6 ins. inwards from such fence or wall or obstruct or interfere with access for all purposes from and to Barebones orchard to and from North Street carts carriages and other wheeled vehicles of wooden or partly wooden construction cartwheels and farm implements at all times for the more convenient use and occupation of the defendant's said house and workshop.”

In his judgment Upjohn J recorded the relevant submission of the plaintiff’s counsel in the following terms, at page 497 of the report:

“He contended that there is nothing novel in the business of a wheelwright, but that it is an entirely novel suggestion that a wheelwright or anyone else carrying on trade can have such a right as this. He pointed out the great width of the right claimed: vehicles can be left there for an indefinite time, for years, if necessary; they can be left in a vague and undefined part of the strip, leaving an ill-defined gangway, as it has been called, for the owner of the strip to use in getting to his land. He further pointed out that the defendant is really doing much more than an ordinary wheelwright's business; that he is doing repairs to every form of modern type of vehicle, such as motor lorries, and that that also makes the claim really too uncertain to be enforceable.”

Although this argument was framed as an argument based on uncertainty, it can be seen that it engaged the ouster principle, in the sense that the right claimed was said to be too wide. In accepting this argument Upjohn J made it quite clear, at page 498 of the report, that he considered the right claimed to constitute what was virtually a claim to possession of the servient land, if necessary to the exclusion of the owner or, at any rate, to joint user:

“I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement. It seems to me that to succeed, this claim must amount to a successful claim of possession by reason of long adverse possession. I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription.”

Upjohn J thus concluded that the right claimed was not known to the law, and granted the injunction sought by the plaintiff.

A similar result was reached in the later case of Batchelor v Marlow. In this case the defendants operated a business of servicing and repairing cars at garage premises. The defendants had parked cars on a strip of land in connection with their business. The strip of land was L-shaped and comprised what was effectively an area of verge to a dirt road over which there was a public right of way. The public right of way did not extend to the strip itself. It was common ground that there was space to park up to six cars on the strip. The defendants claimed a right to park cars on the strip, for the purposes of their business, on the basis of prescription. The plaintiff was the owner of the strip and commenced proceedings challenging the defendants’ right to make use of the strip for parking cars. At first instance Nicholas Warren QC (as he then was), sitting as a Deputy Judge of the High Court, found for the defendants and declared that the defendants had acquired an exclusive prescriptive right to park up to six cars on the strip, on Mondays to Fridays between the hours of 8.30am and 6.00pm.

This result was overturned in the Court of Appeal. In his judgment, with which Kay and Henry LJJ agreed, Tuckey LJ made reference, at [8] and [9], to the test for the application of the ouster principle, as formulated by Judge Paul Baker in the London & Blenheim Estates case:

“8.

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

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

9.

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

Tuckey LJ went on to refer to Gale on Easements (then in its seventeenth edition), Dyce v Hay, and Copeland v Greenhalf. In relation to Copeland v Greenhalf Tuckey LJ said this, at [12] and [13]:

“12.

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

13.

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

Following his review of the authorities Tuckey LJ returned to the question to be answered, and summarised the competing arguments of the parties, at [15] and [16]:

“15.

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

16.

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

Tuckey LJ then came to his answer to the question, at [17] and [18] (the underlining is my own):

“17.

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

18.

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

Tuckey LJ thus concluded, at [19], that the right claimed by the defendants was too extensive to qualify as an easement:

“19.

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

Both the ouster principle and the decision of the Court of Appeal in Batchelor v Marlow were subjected to criticism by the House of Lords in the Scottish case of Moncrieff v Jamieson [2007] UKHL 42 [2007] 1 WLR 2620, which was concerned with the question of whether a right, in form of a servitude of parking could exist ancillary to a servitude right of vehicular access and, if so, the extent of that right.

A full analysis of Moncrieff v Jamieson is beyond the scope of this decision, and is not required. In terms of the criticism of the ouster principle and Batchelor v Marlow, it is convenient to refer to the speech of Lord Scott. Following a review of the authorities, including Wright v Macadam, Copeland v Greenhalf, London & Blenheim Estates and Batchelor v Marlow, Lord Scott summarised his criticisms in the following terms, at [59]:

“59

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] 1WLR764, 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.”

Lord Neuberger expressed his support for these views in his own speech, but in qualified terms, at [143]:

“143

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.”

It was accepted before the FTT, and it was accepted before me that Moncrieff v Jamieson had not overruled Batchelor v Marlow. This accords with my own reading of Moncrieff v Jamieson. I do not read the decision as overruling either Batchelor v Marlow or the ouster principle, as it is referred to in the case law. Equally, I do not read Moncrieff v Jamieson as altering or qualifying the question to be asked in the application of the ouster principle, as formulated by Judge Paul Baker in London & Blenheim Estates. It seems to me that the current position was correctly identified by Judge Purle QC, sitting as a Judge of the High Court, in Virdi v Chana [2008] EWHC 2901 (Ch), at [15] and [16]:

“15.

I now turn to consider the ouster issue (to which the remaining grounds of appeal relate). It has long been recognised that an easement cannot be claimed if its effect is to deprive the servient owner of the benefits of ownership. This principle was applied to car parking spaces by the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764. On the facts of that case, the Court of Appeal held that the claimed parking easement did not exist in law as the owner of the servient land would be left without any reasonable use of the land, thus rendering that ownership "illusory".

16.

Despite powerful criticisms of that decision by the House of Lords in Moncrieff v Jamieson [2007] 1 WLR 2620, it was not overruled and remains binding on me. I must therefore apply it to the present case, unless it is distinguishable.”

In summary therefore, the question which the FTT had to ask itself in this case was the question formulated by Judge Paul Baker in London & Blenheim Estates, which was adopted and applied in Batchelor v Marlow. For ease of reference I repeat Judge Paul Baker’s formulation of the question:

“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.”

The above summary of the relevant law is not exhaustive, in terms of the cases cited to me. It is not however necessary to go through all of the cases. I should however mention that the legal materials cited to me include the analysis of the ouster principle by the editors of Gale on Easements (Twenty-Second Edition), at 1-72 to 1-85, from which I have quoted above. This analysis includes a most helpful review of the case law and, in particular, the editors’ views on the implications of Moncrieff v Jamieson. The legal materials also included an extract from the Law Commission Report: Making Land Work: Easements, Covenants and Profits A Prendre (Law Com No. 327), in which the Law Commission recommended the abolition of the ouster principle and the statutory reversal of Batchelor v Marlow. I found the extract from the Law Commission Report helpful, in the sense that it contained an illuminating analysis of the development of the ouster principle.

Whether and, if so, to what extent any of the cases cited to me by the parties are, on their facts, of assistance in answering the question engaged by the ouster principle in the present case is a matter which is best left to my analysis of the arguments in the Appeal.

In relation to Batchelor v Marlow, the Appellant sought to introduce four photographs, two of them aerial photographs, which showed the location of the L-shaped strip of land, verging on the public highway, which was the subject of the claim, in that case, to a right of parking by the defendants. All of the photographs postdated both the original trial and the hearing of the appeal in Batchelor v Marlow. The Appellant sought to introduce the photographs by their solicitors emailing the Tribunal on 2^nd June 2025, notifying the Tribunal of the Appellant’s intention to add the four photographs to the appeal bundle.

Perhaps not surprisingly, this provoked an objection from the Respondent’s solicitor, who had been copied in on the email to the Tribunal from the Appellant’s solicitors. This objection was notified to the Tribunal by an email from the Respondent’s solicitors, sent on 4^th June 2025, which included a series of peremptory demands either to destroy the revised appeal bundle or, if the Tribunal had already considered the photographs, to recuse itself and re-list the Appeal for hearing on a later date.

At the hearing of the Appeal, Mr Ball maintained, in more measured terms, the Respondent’s objection to my considering the photographs. He submitted that the photographs could not have been evidence in the trial in Batchelor v Marlow, because they postdated, substantially, the trial. He also submitted that the photographs were of no assistance to me in considering Batchelor v Marlow. His primary submission was that I should disregard the photographs. His secondary submission, if I was prepared to have regard to the photographs, was that I should attach no weight to the photographs.

Where a decision of a court or tribunal which involved a dispute over real property such as a dispute over an easement, is relied upon as authority in a different case, photographs and/or plans of the relevant property can occasionally be helpful. It can be helpful to understand the topography of the property, in the decision relied upon as authority, if such an understanding is required and if such an understanding cannot be obtained from the relevant decision itself.

The present case does not fall into this category. I took the view that it was appropriate for me to consider the four photographs, without prejudice to my decision on whether to exclude the same, in order to see if they were of any assistance to me. I concluded that the photographs were not of assistance, I reached this conclusion for two reasons. First, the photographs were not a reliable guide to the topography of the relevant strip of land at the time of the trial in Batchelor v Marlow. The photographs dated, respectively, from 2006, 2012, 2021 and 2025. As such the photographs postdated, substantially, the trial in Batchelor v Marlow. Second, the photographs, even if they had been reliable evidence of the topography at the relevant time, were not required. I had, in the bundle of authorities for the hearing of the Appeal, both the first instance decision in Batchelor v Marlow and the decision of the Court of Appeal. The reports of these decisions provided all the information which I needed to consider Batchelor v Marlow in the context of the Appeal. In particular Mr Warren QC included a detailed account of the relevant topography at the outset of his first instance judgment.

In these circumstances I concluded that it was unnecessary to exclude the photographs from the materials before me in the Appeal. The photographs were not required, for the reason which I have just explained. In these circumstances it is not necessary for me to place any reliance upon the photographs, and I have not done so. I therefore accept the secondary submission of Mr Ball; namely that I should attach no weight to the photographs.

My only other observation in this context is that some of the heat, at least, would have been taken out of this minor procedural dispute if the Appellant’s solicitors had approached the Respondent’s solicitor, prior to attempting to incorporate the photographs into the appeal bundle, for the purposes of seeking the Respondent’s agreement to the photographs being included in the appeal bundle. So far as I am aware, the Appellant’s solicitors did not do this, but instead sought to include the photographs in the appeal bundle by direct communication with the Tribunal. If the consent of the Respondent had been sought first, and on the assumption that this consent had not been forthcoming, the parties could then have liaised on an agreed method of putting the photographs before the Tribunal for the purposes of resolving the dispute over whether they should be admitted into the materials before the Tribunal in the Appeal. This would have been sensible case management, and would have spared the Tribunal some intemperate correspondence.

It was common ground that the FTT, in addressing what it referred to as the ouster issue, asked itself the correct question at Paragraph 59, derived from London & Blenheim Estates. For ease of reference I repeat Paragraph 59:

“59.

Both counsel accepted that Moncrieff v Jamieson did not overrule Batchelor, which remains binding in the High Court and on this Tribunal, and it is the relevant test that I should apply – if the Beach Huts have the benefit of a right to store up to six boats in the Boat Storage Area during the winter months beginning 1 October through to 31 May each year, will TDC be left without any reasonable use of the Boat Storage Area?”

It follows that, if the Appeal is to succeed, the Appellant must demonstrate that the FTT went wrong, in answering this question, in such a way as to invalidate its answer. I will refer to this question, namely whether the Disputed Easement would leave the Respondent without any reasonable use of the Triangle, as “the Ouster Question”.

In this context another of the cases cited to me, which I have mentioned in my summary of the grounds of appeal, is of particular relevance. In P&S Platt Ltd v Crouch the defendants had been the owners of three pieces of land, comprising a hotel, a house and a bungalow on an island in a river. There were river moorings on the island which had been used by the hotel for its guests. The claimant acquired the hotel, with an option, which was not exercised, to acquire the house and bungalow. The claimant sought a declaration that the mooring rights had passed with the transfer of the hotel, pursuant to Section 62 of the Law of Property Act 1925 and the rule in Wheeldon v Burrows (1879) 12 Ch D 31. The claimant also sought an injunction to prevent the defendants from interfering with the mooring rights. At first instance Judge Richard Seymour, sitting as a Judge of the High Court, decided that the mooring rights had passed with the transfer, pursuant to Section 62.

The defendants appealed to the Court of Appeal. The appeal was dismissed. For the purposes of the Appeal the relevance of this case lies in the fact that one of the issues, in relation to the application of Section 62, was whether the rights claimed by the claimant deprived the defendants of the beneficial use of their retained land such that the rights were not capable of being easements. Judge Seymour had rejected the defendants’ argument that the right to use the river moorings was not capable of being an easement, by reason of the ouster principle. The principal judgment in the Court of Appeal was given by Peter Gibson LJ. Longmore LJ delivered a short concurring judgment. Dyson LJ agreed with both judgments. In his judgment, at [43] and [44], Peter Gibson LJ recorded the argument of the defendants in the following terms:

“43.

It is not in dispute that a right will only pass under s.62 if it is a right capable of existing as an easement (Megarry & Wade op.cit. para.18–113). It is also common ground that the rights claimed by the claimant are in principle capable of being easements.

44.

However, Mr Caddick relies on the line of authorities which say that if the right claimed would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, that right is not capable of being an easement (see Copeland v Greenhalf [1952] Ch. 488 at 498 per Upjohn J., London & Blenheim Ltd v Ladbroke Retail Parks Ltd [1992] 1 W.L.R. 1278 at p.1288C per H.H. Judge Paul Baker, Q.C. sitting as a High Court judge and Batchelor v Marlow (2001) 82 P. & C.R. 36).”

In terms of the ability of the Court of Appeal to interfere with the decision of Judge Seymour on the question of whether the claimed right left the defendants with any reasonable use of their retained land, Peter Gibson LJ identified the correct approach in the following terms, at [45]:

“45.

Essentially this is a question of fact and degree on which this court will only interfere with the assessment of the trial judge if persuaded that the judge made some significant error or was otherwise plainly wrong. His view was that there was only minimal interference through the rights with the use of the servient tenement.”

Mr Petts accepted, in his written and oral submissions, that I could only interfere with the decision of the FTT on the ouster issue if I was persuaded that the FTT had made some significant error or was otherwise plainly wrong in answering the Ouster Question; that is to say the question of whether the Disputed Easement, if it existed, would leave the Respondent without any reasonable use of the Triangle. I agree with Mr Petts that this is the correct approach.

It is therefore for the Appellant to persuade me that the FTT made some significant error or was otherwise plainly wrong in answering the Ouster Question.

As I have said, Ground 1 effectively comprises four grounds or sub-grounds of appeal; Grounds 1(a)-1(d). I will take them in turn.

The Appellant contends that the Judge was wrong to place so much reliance upon Copeland v Greenhalf, the facts of which are said to have been significantly different to the present case.

It seems to me that there are two difficulties with this argument.

The first difficulty engages a number of points, and requires a fairly lengthy explanation. In summary however, the first difficulty is that, on the findings of fact made by the FTT, there do seem to me to be material similarities between the present case and Copeland v Greenhalf.

In Copeland v Greenhalf the effect of the right claimed by the defendant was found by Upjohn J to be as follows, at page 498 of the report:

“Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon.”

In the present case the FTT found that only about six boats could be fitted into the Triangle (Paragraph 19). The FTT also found that the Appellant had used the Triangle for the storage of up to six boats since 1982 during the period from October to May (the Relevant Period), subject to some limited use for the storage of boats belonging to others, although this use by others had tailed off as other boat hire businesses closed (Paragraph 24). The FTT also found, at Paragraph 60, that during the Relevant Period the storage of six boats on the Triangle would give the Appellant exclusive use of the Triangle during that period.

It is not open to me to interfere with these findings of fact, which were made by the FTT after hearing all the evidence in the case. Independent of this one can see, simply by looking at the photographs of the Triangle and the Car Park which were included in the appeal bundle, that the FTT was plainly right in these findings. The Triangle is a small area. It is obvious that once six boats are stored on the Triangle, there is no room for any other activity to be carried on within the Triangle. This in itself disregards the fact that the Disputed Easement is not simply a claim to a right to store up to six boats on the Triangle, but includes a right to store related equipment on the Triangle and to carry out maintenance work to the boats.

Mr Petts sought to argue, as Mr Palfrey argued for the Appellant before the FTT, that there were other activities which could be carried out on the Triangle by the Respondent. The FTT found however that this was not the case. At Paragraph 61 the FTT found that during the Relevant Period it would not be possible to carry out activities such as painting or re-surfacing the Triangle. Mr Petts sought to renew these arguments before me. He argued that activities such as fencing the Triangle, or re-surfacing or re-marking the Triangle would be possible. Again however, it is not open to me to interfere with the findings of fact made by the FTT in this respect. Equally, it is obvious from the materials which I have seen that the FTT was plainly right in its findings. The activities referred to by Mr Petts would simply not be possible with six boats stored on the Triangle during the Relevant Period, even if one assumes that the ancillary rights to store related equipment and to carry out maintenance work were not exercised. Indeed, I understood Mr Petts to accept, in response to my questions on this part of his submissions, that these activities would have to be carried out during the summer months, outside the Relevant Period.

While there may be a difference of scale, as between the area of land said to have comprised the servient land in Copeland v Greenhalf and the Triangle, this seems to me to be a difference without a distinction. In terms of the effect of the rights claimed in Copeland v Greenhalf and the rights claimed in the present case, the effect on the relevant land seems to me to be the same. In the present case it seems to me that the FTT was quite entitled to view the Disputed Easement as a claim to the whole beneficial user of the Triangle, during the Relevant Period, in much the same way as Upjohn J viewed the rights claimed in Copeland v Greenhalf.

This does however leave one other potential point of distinction between the present case and Copeland v Greenhalf, which is also relied upon by the Appellant. In Copeland v Greenhalf the rights claimed had no temporal restriction. If the rights existed, the vehicles could be parked on the strip and left there for indefinite periods. In the present case there is a temporal restriction. If the Disputed Easement exists, the Appellant can use the Triangle for the storage of boats during the Relevant Period, but they will be removed in each year for the summer months, between June and September, leaving the Triangle clear for use as part of the Car Park.

This is an important point, which goes beyond the question of whether the FTT was right to regard Copeland v Greenhalf as a case on similar facts. In answering the Ouster Question, it is clearly material to consider whether and, if so, how one should take into the account the fact that the Disputed Easement will not, at least during the summer months, cause any interference with the Respondent’s use of the Triangle, at least as part of the Car Park.

This point is also the point which is the subject matter of Ground 2. It seems to me however that it is necessary to consider the point at this stage, and as part of my analysis of Ground 1, rather than leaving the point to Ground 2. I therefore deal with this point at this stage of my analysis.

Mr Petts argued that the temporal restriction had to be taken into account in considering whether any reasonable use of the Triangle was left to the Respondent. He pointed out that in Batchelor v Marlow the right of parking which was claimed was also temporal. The right was said to be a right to park cars on the strip of land, on Mondays to Fridays, between 8.30am and 6.00pm. When considering the question of whether any reasonable use was left to the plaintiff, Tuckey LJ took into account the times (overnight and at weekends) when the parking would be available to the plaintiff. On the facts of Batchelor v Marlow this availability did not help the defendants because, as Tuckey LJ commented at [17] in his judgment, the plaintiff “could of course park himself at night or the weekends but the commercial scope for getting others to pay for doing so must be very limited indeed.”. Nevertheless, as Mr Petts submitted, Tuckey LJ was prepared to consider what the position would be, in the times outside the temporal restrictions on the right claimed by the defendants, in considering whether any reasonable use was left to the plaintiff. By parity of reasoning, so Mr Petts submitted, the FTT should also have taken into account the summer months, both in terms of how much reliance could be placed upon Copeland v Greenhalf, and, more fundamentally, in terms of considering whether the Disputed Easement would leave the Respondent with any reasonable use of the Triangle.

In this context Mr Petts also relied upon P&S Platt v Crouch. I have already summarised the facts and decision in that case. In rejecting the argument that the rights of mooring claimed by the claimant did deprive the defendants of the beneficial use of their retained land, such that the rights could not be easements, Peter Gibson LJ said this in his judgment, at [46]:

“I accept that the easements do detract from the defendants’ enjoyment of their land, but I am wholly unable to accept that this effectively deprives them of any reasonable user of Noosa Sound. True it is that in the summer months there will be boats moored at times along the frontage to the river but the boats could be the defendants’ own boats and for a substantial part of the year there will be no boats moored.”

Mr Petts relied on this reasoning to argue that, in the present case, it was equally legitimate to consider the use which the Respondent could make of the Triangle during the summer months.

In response to these arguments, Mr Ball submitted that it was not legitimate to take the summer months into account in answering the Ouster Question. His essential point was that during the summer months the Respondent’s ownership of the Triangle could not be subject to the Disputed Easement because the Disputed Easement was restricted to the Relevant Period. He submitted that it was wrong to take the period of ownership during the summer months into account, as a way of meeting the Respondent’s objection that during the period when the Disputed Easement did apply (the Relevant Period), the Respondent was left without any reasonable use of the Triangle. This was to use the period of time when the Triangle was supposed to be unburdened with the Disputed Easement as an effective part of the time when the Triangle was burdened with the Disputed Easement. Mr Ball submitted that the FTT had been right to reject the argument that the summer months should be taken into account in answering the Ouster Question, for the reason stated by the FTT at the end of Paragraph 60:

“It is correct that TDC can use the Boat Storage Area as car parking space during the summer months, but no easement is claimed during that period.”

I prefer the argument of Mr Ball on this point, both in relation to the question of whether this is a ground of distinction between the present case and Copeland v Greenhalf and in relation to the wider question of whether the FTT should have taken the summer months into account in answering the Ouster Question. My reasons for preferring the argument of Mr Ball are as follows.

As the FTT pointed out, at the end of Paragraph 60, the Disputed Easement was not claimed in relation to the summer months. The Disputed Easement was claimed as an intermittent easement, that is to say an easement which was not continuous, but which only had effect in a certain part of each year. In considering whether an intermittent easement of this kind has the effect of leaving the owner of the servient land without any reasonable use of the servient land, I do not see how it can be legitimate to answer that question by taking into account a time when the intermittent easement does not have effect. It seems to me that the adoption of this approach involves treating the servient land as if it was subject to the relevant easement, at a time when, because of the temporal nature of the easement, it is not in fact subject to the relevant easement. Putting the matter another way, the Appellant’s argument involves assessing the extent of the use of the servient land, pursuant to the relevant right, by reference to a time when the right does not apply. In my judgment this is not the right approach. It seems to me that the Ouster Question falls to be answered by reference to the effect of the Disputed Easement during the period in each year when the Disputed Easement, if established, will apply; namely the months from October to May in each year, which I am referring to as the Relevant Period.

I accept that in Batchelor v Marlow, Tuckey LJ did take into account times outside those when the easement was claimed. It does not however appear that there was any argument on this point, or indeed any consideration of this point. In these circumstances, I do not think that Batchelor v Marlow can be treated as authority to support the Appellant’s argument that the summer months should be taken into account in the present case, in answering the Ouster Question. In addition to this, it seems to me that the situation in Batchelor v Marlow was a rather different one. The easement which was claimed in that case was not intermittent in the sense that, for a certain period of the year, it did not apply at all. The right of parking, as claimed, operated on a continuous basis, but was restricted to working hours on weekdays. In these circumstances, and in answering the Ouster Question in Batchelor v Marlow, I can see some justification for considering what use the plaintiff could have made of the relevant strip of land during the remaining parts of each week. I cannot see a similar justification in the present case, where the Appellant’s argument seeks to bring into the Ouster Question a single period of four months in each year when the Disputed Easement, if established, would not have effect.

Turning to Mr Petts’ reliance upon P&S Platt v Crouch, it seems to me that the reasoning of Peter Gibson LJ is not applicable in the present case. In Platt the claimant was claiming rights of mooring which were not limited to a particular part of the year. The mooring rights were not claimed on an intermittent basis, but for the entirety of the year. In those circumstances there was no reason to exclude the winter months from consideration of the Ouster Question. It is also worth adding that this is not the only basis on which the facts of Platt can be distinguished from the present case. As Peter Gibson LJ noted, in the extract from his judgment, at [46], which I have cited above, the factual position was not one where, even in summer, the boats moored on the river front would only be boats serving the hotel. As Peter Gibson LJ commented, those boats could be the defendants’ own boats. In summary, it seems to me that Platt would only be relevant in the present case if the Disputed Easement was a claim to a right to store a more limited number of boats (say, two or three) on the Triangle all year round.

In summary, the first difficulty with Ground 1(a) seems to me to be that there are material similarities between the present case and Copeland v Greenhalf. For the reasons which I have explained I do not think that there is a point of distinction in the present case on the basis that the Disputed Easement is only claimed to have effect for part of the year; during the Relevant Period.

The second difficulty with Ground 1(a) can be stated more shortly. In concluding that Copeland v Greenhalf was the most similar case, on its facts, to the present case, the FTT was making an evaluative judgment, on the basis of all the evidence in the case. It is not in dispute that the FTT asked itself the right question in relation to the ouster issue, and that this question (the Ouster Question) was one of fact and degree. It seems to me that the evaluative judgment of the FTT, in relation to Copeland v Greenhalf, was part of the exercise of fact and degree which was required to answer the question raised by the ouster issue. It seems to me that I cannot and should not interfere with that evaluative judgment unless I am persuaded that the FTT made some significant error or was otherwise plainly wrong. I can see no basis for saying either that the FTT made a significant, or any error in its reliance upon Copeland v Greenhalf as a case on similar facts, or that the FTT was wrong, let alone plainly wrong in this respect. To the contrary, and for what it is worth given my inability to interfere with the evaluative judgment made by the FTT in relation to Copeland v Greenhalf, it seems to me that the FTT was in fact right in this evaluative judgment.

Drawing together all of the above analysis, in relation to Ground 1(a), I conclude that the FTT made no error in the reliance which it placed upon Copeland v Greenhalf, let alone any significant error.

This brings me to Ground 1(b), which is that the FTT considered pedestrian use on the wrong basis in Paragraph 65. For ease of reference, I repeat Paragraph 65:

“65.

An easement to park a car in two parking spaces in a car park is effective where the servient owner can walk across the car park, or another car can back into a “used” part of the land when coming out from another space, or the servient owner can change the surfacing or erect and advertising board or fencing (De La Cuona v Big Apple Marketing Ltd [2017] EWHC 3783 (Ch), Newey J, para 22). Here, motorists who park their cars in the Car Park can use the spaces between boats to cross the Boat Storage Area to get to and from their cars, but this is not required as it is open land and other access is available to the Car Park on foot. Concerning fencing, none could be erected within the Boat Storage Area while boats are stored there.”

Mr Petts submitted that, in considering whether any reasonable use of the Triangle was left to the Respondent, it was necessary to concentrate on the servient land; which was in this case the Triangle. One could not take into account the fact that similar use could be made of neighbouring land, so that such use was not required in relation to the servient land. In support of this submission Mr Petts relied upon what was said by Lord Scott in his speech in Moncrieff v Jamieson, at [57]. In this part of his speech Lord Scott was considering what was said by Judge Paul Baker in London & Blenheim Estates, in relation to the possible inconsistency between Wright v Macadam and Copeland v Greenhalf:

“57

It has often been commented that Wright v Macadam was not cited to Upjohn J and the possible inconsistency between the two cases was addressed by Judge Paul Baker QC in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 where a right of parking had been claimed. He commented, at p 1286, that the question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: “A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another.””

Lord Scott considered this attempt to reconcile the two authorities as misconceived. As he went on to explain:

“I think, with respect, that this attempt to reconcile the two authorities was addressing the wrong point. The servient land in relation to a servitude or easement is surely the land over which the servitude or easement is enjoyed, not the totality of the surrounding land of which the servient owner happens to be the owner. If there is an easement of way over a 100-yard roadway on a 1,000-acre estate, or an easement to use for storage a small shed on the estate access to which is gained via the 100-yard roadway, it would be fairly meaningless in relation to either easement to speak of the whole estate as the servient land. Would the right of way and the storage right fail to qualify as easements if the whole estate bar the actual land over which the roadway ran and on which the shed stood, with or without a narrow surrounding strip, were sold? How could it be open to the servient owner to destroy easements by such a stratagem? In my opinion such a stratagem would fail. It would fail because the servient land was never the whole estate but was the land over which the roadway ran and on which the shed stood. Provided the servient land was land of which the servient owner was in possession, the rights of way and of storage would continue, in my opinion, to qualify as easements.”

I accept Mr Petts’s point that, in considering whether any reasonable use of the relevant servient land is left to the owner of that land, where an easement is claimed, it is necessary to concentrate on the servient land. One does not treat the servient land as including other adjacent land of which the servient land may happen to form part. I do not think however that this point assists the Appellant, for two related reasons.

First, the FTT was required to consider whether the Disputed Easement would leave the Respondent with any reasonable use of the Triangle during, as I have decided, the Relevant Period. In considering whether the fact that pedestrians could, as the FTT found, use the spaces between the boats to cross the Triangle, it seems to me that the FTT was entitled to consider what need there was for pedestrians to cross the Triangle and what value there was in the Triangle being available for such access. This consideration required the FTT to focus on the servient land, namely the Triangle, which the FTT did at Paragraph 65. In considering the utility of such pedestrian access however it seems to me that the FTT was entitled to take account of the location of the Triangle. As the FTT found, and as is obvious from the photographs in the appeal bundle, there is no utility in such pedestrian access. It is simply not required. I do not think that the FTT’s approach to this particular question contradicted what was said by Lord Scott in Moncrieff v Jamieson, or failed to concentrate on the Triangle, as the servient land.

Second, and even if it is assumed that the FTT went wrong in its consideration of the utility of pedestrian access across the Triangle, I do not think that this constituted a significant error in the FTT’s consideration of the Ouster Question, or had the effect that the FTT’s answer to the Ouster Question was either plainly wrong or wrong.

In summary, I conclude that the FTT did not consider pedestrian use on the wrong basis in Paragraph 65.

Ground 1(c) is that the FTT failed to take into account other uses which the Respondent could make of the Triangle, such as drainage, running utilities under or over the Triangle, providing lighting, providing seating for visitors and so on.

I have effectively dealt with Ground 1(c), already, in my analysis of Grounds 1(a) and 1(b). I should however stress the findings of fact made by the FTT in this respect. The Judge found, at Paragraph 60, that during the Relevant Period the storage of six boats on the Triangle would give the Appellant exclusive use of the Triangle during the Relevant Period.

In Paragraph 61 the FTT considered other uses of the Triangle, such as painting and re-surfacing work, and found that such activities would not be possible during the Relevant Period. As I have already recorded, I understood Mr Petts to accept that this finding was correct, so far as the Relevant Period was concerned.

In Paragraph 62 the FTT considering the possibility of the Respondent granting a licence for gigs (which I understand to be rowing boats) during the Relevant Period, but found that this would not be possible during the Relevant Period.

In Paragraph 65 the FTT considered the possibility of pedestrian use during the Relevant Period. The FTT did not consider this use to be material, for the reasons given in Paragraph 65. I have already concluded, in my analysis of Ground 1(b), that the FTT did not consider pedestrian use on the wrong basis in Paragraph 65. The FTT also considered the possibility of putting up fencing within the Triangle, but also found that this would not be possible during the Relevant Period.

In Paragraph 66 the FTT made the specific finding that no parking of cars could take place on the Triangle during the Relevant Period, although this is also part and parcel of the findings in Paragraph 60.

The grounds of appeal seek to add other uses to the list of possible uses of the Triangle, such as lighting, seating or the provision of utilities. It was not clear to me what lighting or seating was being referred to, or whether such possible uses were actually raised before the FTT. If they were, I cannot see how they would have been feasible uses of the Triangle during the Relevant Period, given the findings made by the FTT. So far as utilities were concerned, I was not shown any evidence that utilities did run under or across the Triangle, and there is no reference to this in the Decision. If the reference to utilities was intended to be a reference to work on the Triangle to run utilities through the Triangle, it is clear from the findings of the FTT that this would not be feasible during the Relevant Period.

As I have said, it is not open to me to interfere with the findings made by the FTT as to possible alternative uses of the Relevant Period. The FTT heard all the evidence in the case. I have not. As I have also already said, and independent of my inability to interfere with these findings, it seems to me that these findings were plainly correct.

In these circumstances I cannot see that the FTT placed too much emphasis on the Respondent’s use of the Triangle for public parking. This criticism also seems to me to miss the essential point in this context, which is that, on the findings made by the FTT, the Disputed Easement would have left the Respondent with no other reasonable use of the Triangle during the Relevant Period, independent of the Triangle’s identity as part of the Car Park.

I conclude that there was no failure on the part of the FTT to take into account other uses which the Respondent could make of the Triangle during the Relevant Period. I can see no basis for saying that the FTT made a significant, or any error in this respect or was wrong, let alone plainly wrong.

Ground 1(d) is that the FTT was wrong not to take into account the extent of the dominant tenement’s extensive use of the coal shed for storage in the case of Wright v Macadam. The argument is that if the FTT had done so, the FTT could not reasonably have found the Respondent to be left with no reasonable use of the Triangle.

It seems to me that there are a number of difficulties with this argument.

First, it is not disputed that the FTT asked itself the right question; namely the Ouster Question. In answering the Ouster Question the FTT had to make its own judgment of fact and degree, on the evidence before the FTT, as to whether the Disputed Easement would leave the Respondent with any reasonable use of the Triangle. I cannot see that the FTT was obliged to take Wright v Macadam into account in answering the Ouster Question, or that Wright v Macadam was decisive of the Ouster Question. It seems to me that it was a matter for the evaluative judgment of the FTT as to what weight, if any, it gave to Wright v Macadam in answering the Ouster Question.

Second, this ground of appeal assumes that Wright v Macadam was not taken into account by the FTT. I do not accept this. I understand that Wright v Macadam was cited to the FTT. I have no doubt that the FTT therefore considered Wright v Macadam. So far as I can see Wright v Macadam is not referred to in the Decision. The FTT was not obliged to record in the Decision every case cited to it by the parties. The same applies to the arguments of the parties and the evidence heard by the FTT. Demands by parties that everything said to a tribunal or court in the course of a hearing be recorded in the decision or judgment impose an unnecessary and undesirable burden on tribunals and courts. The same applies to appeals launched on the basis, without more, that a particular case or argument or piece of evidence has not been the subject of express reference in the decision or judgment. Such appeals should be treated with caution. As I have said, I have no doubt that the FTT did take Wright v Macadam into account. Wright v Macadam was not decisive of the Ouster Question and, as I have also said, it was a matter for the FTT as to what weight, if any, to give to Wright v Macadam.

Third, the Appellant’s argument seeks to take from Wright v Macadam considerably more than can actually be found in the decision. The principal issue before the Court of Appeal in Wright v Macadam was whether what had previously been a permissive right to use the shed for the storage of coal had taken effect as a right passing with the conveyance, on the renewal of the tenancy, by the operation of Section 62 of the Law of Property Act 1925. One of the questions which arose was whether, for the purposes of Section 62, the right to store coal in the shed was a right capable of being granted at law. The Court of Appeal decided that it was. Wright v Macadam is thus authority for the proposition that a right of storage can exist as an easement.

I refer back to my earlier analysis of Wright v Macadam. So far as I can see, it was not argued in Wright v Macadam that the right of storage was not one which could exist as an easement, by reason of the ouster principle. The ouster principle does not seem to have been raised. Instead, the defendant’s counsel concentrated on the argument that the right had been permissive only, and for that reason was not one in respect of which Section 62 could operate, and on the argument that the right was too uncertain, in the absence of precise evidence as to how the right had been and was to be enjoyed. What would have happened if counsel for the defendant had argued that the right left the defendant without any reasonable use of the shed must, it seems to me, be a matter for speculation.

I accept the point made by Mr Ball in this context, which is that there is little information to be gleaned from the report of Wright v Macadam as to the way in which the shed had been used by the first plaintiff for the storage of coal. This reinforces the point which I have just made; namely that it must be a matter for speculation what would have happened if it had been argued by the defendant’s counsel that the claimed right of storage left the defendant without any reasonable use of the shed. This, in turn, seems to me to render it something of a futile exercise to seek to reconcile the decisions in Wright v Macadam and Copeland v Greenhalf. In Copeland v Greenhalf the ouster principle was fully engaged and was fully investigated, both in the evidence and in the argument, as reflected in the decision of Upjohn J. This was not the position in Wright v Macadam, which is why I find it difficult to treat Wright v Macadam as authority for anything more than the proposition that the law will, in principle, recognise an easement of storage. What were not considered in Wright v Macadam were the difficulties which an easement of this kind can create when it comes to the application of the ouster principle. It is those difficulties which the courts and tribunals have had to deal with in subsequent cases.

Fourth, if it is assumed that the FTT failed to take Wright v Macadam into account, but should have done so, I cannot see how this justifies the Appellant’s assertion that, on this hypothesis, the FTT could not reasonably have found the Respondent to be left with no reasonable use of the Triangle. Given the findings made by the FTT on the evidence, I cannot see how the FTT could have reached any other conclusion than that the Disputed Easement would leave the Respondent without any reasonable use of the Triangle during the Relevant Period. I can see nothing in Wright v Macadam which would have justified a different conclusion, let alone compelled a different conclusion.

For the above reasons, I conclude that the FTT made no error in relation to Wright v Macadam. If, contrary to my view, the FTT did make an error in relation to Wright v Macadam, I cannot see that the error constituted a significant error or resulted in an answer to the Ouster Question which was wrong, let alone plainly wrong.

Drawing together all of my analysis of the grounds or sub-grounds of appeal which make up Ground 1, and for the reasons which I have given, I conclude that Ground 1 fails as a ground of appeal.

I have already dealt with the argument in Ground 2, in my analysis of Ground 1(a). For the reasons which I have given in my analysis of Ground 1(a) I consider that the FTT was right to exclude the summer months, when the Disputed Easement would not have effect, from its consideration of the Ouster Question. The FTT was not therefore wrong to leave the summer months out of account, in its consideration of the Ouster Question.

As I have also explained in my analysis of Ground 1(a), the reasoning of Peter Gibson LJ in Platt was not relevant in the present case, because there was no temporal restriction on the mooring rights which were claimed in Platt.

I should add two further points to my analysis of Ground 2.

First, if it is assumed, contrary to my view, that the FTT should have taken the summer months into consideration, it does not seem to me necessarily to follow that the Ouster Question would have received a different answer from the FTT. This would have required a consideration of the impact upon the Respondent of being able to use the Triangle for only four months in every period of twelve months, with no use of the Triangle in the remaining eight months. In the grounds of appeal it is asserted that during the summer months, there is no interference with the Respondent’s use of the Triangle, because the Appellant’s boats are no longer stored there. Whether this assertion is correct, in circumstances where the Respondent is confronted with a situation where it can make no use of the Triangle for eight months out of every twelve months, seems to me a matter for speculation.

Second, the grounds of the appeal assert that during the winter months, that is to say the Relevant Period, there is no significant interference with the Respondent’s use of the Car Park. This assertion seems to me to contradict the Appellant’s argument, which I have accepted, that for the purposes of answering the Ouster Question one must concentrate on the servient land; in this case the Triangle. Independent of this point, it does not seem to me that there is a finding on the evidence, in the Decision, which supports this assertion. The assertion appears to me to be a matter for speculation.

For the reasons which I have given, I conclude that Ground 2 fails as a ground of appeal.

Ground 3 engages the following statement of Chadwick LJ in Montrose Court Holdings Ltd v Shamash [2006] EWCA Civ 251, at [30], which I repeat for ease of reference:

“30.

I would add that I am not persuaded that a right to park can subsist as an easement if part of the serviced land is to be occupied for a continuous period of 72 hours to the exclusion both of the freeholder and of all others having a like right. But it is not necessary to decide that point on this appeal. It is enough to say that the regulation was properly made in relation to the temporal limitation as well as in relation to the numeric limitation to one vehicle at a time.”

The Appellant’s case is that the FTT was wrong, at Paragraph 64, to place any reliance on this statement in finding that the Respondent would be left without any reasonable use of its land, let alone so as to make its ownership of that land illusory.

It seems to me that there are two difficulties with this ground of appeal.

First, if it is assumed that the FTT was wrong to place reliance on the statement of Chadwick LJ, I cannot see that this was material to the answer given by the FTT to the Ouster Question. If one notionally removes Paragraph 64 from the Decision, I cannot see that this would have made any different to the FTT’s answer to the Ouster Question. The essential reasoning of the FTT, in answer to the Ouster Question, can be found in Paragraph 60. If the FTT should have disregarded Chadwick LJ’s statement, or given the same no weight, this would not have affected the reasoning in Paragraph 60 or, for that matter, the reasoning in Paragraphs 61-63 and Paragraphs 65-66.

As such, and assuming an error on the part of the FTT in placing reliance upon the statement of Chadwick LJ, I cannot see the FTT made a material or significant error, or arrived at an answer to the Ouster Question which was wrong, let alone plainly wrong.

Second, what I have just said assumes that the FTT was wrong to place any reliance on the statement of Chadwick LJ. I do not think that the FTT was wrong in what it said in Paragraph 64. I say this for the following reasons.

Starting with the decision in Montrose Court itself the issue in that case which is relevant to the present case was whether the owners of an estate were entitled impose certain parking regulations over the service road and forecourt of the estate, for the purposes of regulating the parking of cars by residents of the estate. In the case of the flats and houses on the estate which were held on leases, the estate owners had an express right to impose the parking regulations. This was not however the position with the defendants, Mr and Mrs Shamash who, the judge at first instance decided, had acquired the freehold interest in their house on the estate with the benefit of a right of parking on the service road.

The estate in question comprised a development of flats and houses at the northern/Hyde Park end of Exhibition Road in London, between Princes Gate and Princes Garden. Parking regulations were required because there were around 114 parking spaces available within the development, and around 100 households. Given the fact of multiple car-ownership within households, there was excess demand for residents’ parking spaces. The regulations were intended to control parking by the issue of permits to residents. The regulations provided for only one permit to be issued to each household. The regulations also included a regulation which, in the case of a resident’s permit which specified more than one car, limited the parking to only one of those cars at any one time. The same regulation also provided that a car could only be parked on a particular parking space for up to 72 hours, if space was available.

The judge at first instance made a declaration that the estate owners could validly make regulations. He decided however that each of the defendants was entitled to a parking permit, which meant that there were two permits for the defendants’ household, rather than the single permit per household which was intended by the regulations. This in turn meant that the defendants could park two cars on the estate at the same time. The effect of the judge’s declaration was also that the defendants became bound by the restriction to 72 hours parking on a particular space at any one time. The estate owners appealed against the judge’s decision that each of the defendants was entitled to a permit. The defendants cross-appealed against the judge’s decision that the parking regulations could restrict their parking to a temporal limit of 72 hours at any one time.

The Court of Appeal allowed the appeal of the estate owners and dismissed the cross-appeal of the defendants. In his judgment, with which Moore-Bick and Collins LJJ agreed, Chadwick LJ summarised the position in the following terms, at [28] and [29]:

“28.

For those reasons it seems to me that the regulations in the present case which limited the right to park to the parking of one vehicle at a time were proper regulations to make. They were regulations which can be seen as necessary if all those having the right to park on the service road are to be able to enjoy that right in orderly competition.

29.

In relation to the temporal restriction to parking for no more than 72 hours at any one time the judge applied that test correctly. He said this, at paragraph 25 of his judgment:

"The regulation limiting the period of parking to 72 hours only is no doubt an inconvenience. It is directed to ensuring some opportunity for changeover in occupation of parking spaces. Since the right to park is in common with others and not only other householders, such objective does seem to me to be consistent with ensuring to the grantee the benefit of the grant whilst so managing it as to enable others to share the parking space."

That, if I may say so, is a correct statement of the principle. The judge applied that principle correctly in relation to the temporal limitation to 72 hours; but failed to apply it in relation to the numeric limitation to one vehicle at a time.”

Chadwick LJ then added the statement, at [30], which I have quoted above.

It seems to me that the point which Chadwick LJ was making at [30], which was obiter to the actual decision of the Court of Appeal in Montrose Court, was that a right to park which involved the exclusion of the freeholder and all others having a like right could “likely” not subsist as an easement. In principle I cannot see how this statement was inconsistent with the law as stated in Copeland v Greenhalf, Batchelor v Marlow and other such cases. Where the effect of the relevant right is to leave the owner of the servient land without any reasonable use of the land the ouster principle is engaged and the right is not an easement. Whether the ouster principle is engaged in a case where the period of exclusion is limited to 72 hours seems to me to be a question which does not necessarily admit of a single answer. It seems to me that the answer to the Ouster Question is a fact sensitive question, which falls to be answered on the evidence in any particular case, applying the guidance to be found in the relevant case law.

Returning to Paragraph 64, and the reliance of the FTT upon the statement of Chadwick LJ in Montrose Court, at [30], it is important to identify what the FTT actually said. After setting out the statement, the FTT said this:

“In the present case, apart from the spaces between the stored boats, the servient land will be occupied by boats for a continuous period considerably longer than 72 hours.”

This conclusion did not depend, for its validity, on the correctness of the proposition that a right to park, to the exclusion of all others, for a continuous period of 72 hours could not subsist as an easement. Chadwick LJ did not himself suggest that this proposition was necessarily correct. He used the word “likely”. Beyond this, the FTT was plainly both entitled to note, and correct to note, on the findings of the FTT on the evidence, that the period of exclusion in the present case was the entirety of the Relevant Period; that is to say a period of eight months comprising the entirety of the period during which, in each year, the Disputed Easement was claimed to be in effect.

In these circumstances, it seems to me that the FTT was quite entitled to regard what was said by Chadwick LJ in Montrose Court, obiter as it was, as a further reinforcement of the answer to the Ouster Question which it had already reached. I cannot see that the FTT made any error in this respect, let alone any significant error, or that the FTT thereby arrived at any answer to the Ouster Question which was wrong, let alone plainly wrong.

For the reasons which I have given, I conclude that Ground 3 fails as a ground of appeal.

In its Statement of Case in response to the Appeal, the Respondent included the following closing paragraph, following its response to the Appellant’s grounds of appeal:

“33.

In the alternative, if the decision of the FTT on the narrow ouster principle point is to be disturbed on review then the Respondent contends that the Applicant should still fail in his claim for all the reasons contended for by the Respondent. The Respondent did not challenge the decision made by the FTT because it is decisions which are attacked not reasons. Nevertheless, the Respondent takes the position that the decision should be upheld for reasons argued before the FTT.”

This paragraph appeared to be an attempt to challenge those parts of the Decision in which the FTT rejected the Respondent’s arguments. It is a feature of the Decision that the Appellant succeeded in establishing all of the elements required for the Disputed Easement to take effect as an easement by prescription, with the critical exception of the Ouster Question. The Respondent thus failed on the majority of the issues before the FTT.

So far as I am aware, paragraph 33 of the Respondent’s Statement of Case was not particularised any further, prior to the hearing of the Appeal.

At the hearing of the Appeal Mr Ball did seek to raise a challenge to one other part of the Decision. The challenge related to the findings of the FTT at Paragraph 24, which were in the following terms:

“24.

Mr. Ward submitted that on the evidence Mr. Stenner had failed to establish 20 years’ continuous user in respect of the Boat Storage Area. His use has been in common with other local boat users, such as fisherman, who had no nearby premises, and boats were stored on a first come-first served basis in both the Area and the adjoining hard standing. I do not consider this to be in itself a sufficient objection. An easement can be obtained by prescription over a shared road or path, and I am satisfied that Mr. Stenner has used the Boat Storage Area for storage of up to six boats since 1982 during the period October to May, albeit that there have been times when the boats of others were stored in the Boat Storage Area, though less frequently as the other boat hire businesses closed.”

Mr Ball contended that there was an inconsistency here. So far as the required period of 20 years continuous use of the Triangle was concerned, the FTT had proceeded on the basis that the Appellant had proved the required period of continuous use of the Triangle for the storage of up to six boats during the Relevant Period in each year. Although the FTT had proceeded on this basis, Mr Ball submitted that what the FTT had actually found, in Paragraph 24, was that the Appellant had used the Triangle in common with other users since 1982, for the storage of up to six boats. This was a finding that the use of the Triangle had been, at least sometimes, use in common with other users and, as such and during those times of common use, could not have involved the storage of as many as six boats by the Appellant. As such, and if the Appeal was successful on the ouster issue, the FTT’s findings did not support the conclusion that the Appellant had established a right of storage by prescription as extensive as the Disputed Easement.

Given the failure of the Appellant’s grounds of appeal, the Respondent’s challenge does not require a decision. I should however make clear what my decision would have been, if the Respondent’s challenge had arisen for decision.

In the first place, I would not have been willing to entertain this challenge. So far as I am aware, this particular ground of challenge had not been notified, let alone particularised to the Appellant, prior to the hearing of the Appeal. In these circumstances the Appellant and his legal team would have had no opportunity to prepare to meet this challenge. In these circumstances I would have regarded it as unfair to the Appellant to allow this ground of challenge to be raised for the first time at the hearing of the Appeal, and I would have refused to entertain the challenge. Nor would I have been willing to adjourn the hearing of the Appeal, either in whole or in part, in order to allow time for the Appellant to prepare his response to this ground of challenge. Not only would such an adjournment have been unfair to the Appellant, but it would also have engaged further delay and further costs in a case where, given the relatively small area of land involved, the costs should be kept under strict control.

Second, I do not think that the ground of challenge has merit in any event. As I read Paragraph 24, the FTT was satisfied that the Appellant had proved 20 years of continuous use of the Triangle, for the storage of up to six boats, during the Relevant Period in each year. I do not think that the references to common use in Paragraph 24 undermine or qualify this finding. Equally, it is clear from reading the Decision as a whole that the FTT was satisfied that the continuous user which had been proved was sufficient to support the extent of the rights claimed by the Disputed Easement. If therefore I had been willing to entertain the Respondent’s challenge to the findings of the FTT concerning the required period of user of the Triangle, I would have dismissed that challenge.

For the reasons set out in this decision, the Appeal is dismissed.