Batchelor v Marlow

JurisdictionEngland & Wales
Judgment Date28 June 2001
Neutral Citation[2001] EWCA Civ 1051
Docket NumberNo:A3/2000/2233
CourtCourt of Appeal (Civil Division)
Date28 June 2001
William Batchelor
Peter Robert Marlow
Patricia June Marlow

[2001] EWCA Civ 1051


Lord Justice Henry

Lord Justice Tuckey

Lord Justice Kay






Royal Courts of Justice


London WC2

MISS B WILLIAMSON (instructed by Messrs Penningtons, Berkshire, RG14 1DH) appeared on behalf of the Appellant

MR M WEST (instructed by Messrs WH Matthews & Co., Surrey, KT1 2BZ) appeared on behalf of the Respondents


( )


Albert Road in Sutton is an unadopted dirt road which now belongs to the appellant, Mr Batchelor. The public right of way over this road does not however extend to its whole width. The appeal concerns an L-shaped strip of land to the south and west of the public highway, effectively its verge. This land is shown marked pink on the large scale plan which we have been given.


Mr Nicholas Warren QC, sitting as a Deputy High Court Judge in the Chancery Division, held that the respondents, who run a nearby garage business, had acquired an exclusive prescriptive right to park up to six cars on the pink land between 8.30 am and 6.00 pm Monday to Friday. The appellant contends, firstly, that such a right is not capable of being a valid easement and in any event that the judge's findings of fact did not justify the conclusion that such a right had been acquired. We have only heard argument on the first point.


It is common ground that only six cars can be parked on the pink land. If the respondents' right to park in this way is upheld the adjoining land, which does not belong to the appellant, will probably not be able to be developed since the present planning permission for its development requires the pink land to be used as a small roundabout or turning circle in connection with the development.


In the proceedings the respondents asserted rights to park and store cars on the pink land and other parts of the appellant's land along Albert Road. It was common ground that a right to park could exist as an easement but there was some argument before the judge as to whether such a right could be acquired by prescription. The judge stated his conclusion about this as follows:

"obviously the evidence has to establish the right claimed: there may be difficulties in establishing a prescriptive easement of a detailed nature which could be created by express grant

However if the evidence does establish use which is consistent and only consistent with a right which, if it had been expressly granted, would have been capable of subsisting as an easement, the court should recognise that right as capable of being established by prescription."


This conclusion is not challenged, although Miss Williamson, for the appellant, argues that when one comes to consider whether the right asserted was capable of being an easement it was relevant to take account of the fact that it had been acquired by prescription. Thus she submitted a clear distinction should be drawn between cases where there was an express grant over land designated and/or laid out for parking and cases where the right had been acquired by prescription and therefore without the actual consent of the owner of the servient tenant and over land which had not been so designated or laid out.


For the purpose of this case I do not think it is necessary to decide whether Miss Williamson is right about this. I shall proceed on the assumption that there is no difference between the two situations for the simple reason that once the right is established the route by which that has been done does not matter.


In dealing with the point at issue on this appeal the judge simply said:

"I consider that the exclusive right to park six cars during normal business hours on Mondays to Fridays in connection with the business carried on [by the respondents] is capable of subsisting as an easement In my judgment, such a right, being limited as it is in time, does not, as a matter of degree, amount to such exclusion of the Claimant and his predecessors in title as to preclude it subsisting as an easement."


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...

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29 cases
  • Property Point v Kirri
    • United Kingdom
    • Chancery Division
    • 20 November 2009 was so burdensome that it sterilised the land, as was the case with the alleged right to park 6 cars for 9 1/2 hours each day in Batchelor v. Marlow [2003] 1 WLR 764 (at paragraphs 18 and 19 per Tuckey LJ). The purpose of the easement claimed is clearly defined and easily understood, and......
  • Polo Woods Foundation v Shelton-Agar and Another
    • United Kingdom
    • Chancery Division
    • 17 June 2009
    ...exclusive possession. [It might be noted that that language is more consistent with the Moncrieff v Jamieson approach rather than the Batchelor v Marlow approach: see paragraphs 119 ff below.] 43 Ms McAllister cited a passage at the beginning of paragraph 31 of the judgment of Santow JA wit......
  • Howard John Kettel and Others v Bloomfold Ltd
    • United Kingdom
    • Chancery Division
    • 25 May 2012 was not capable of subsisting as an easement (and by implication must be a demise) relying on the decision of the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764. That case involved a claim to a right by prescription to park vehicles for 9 1/2 hours per working day on land adjacen......
  • Moncrieff v Jamieson and Others
    • United Kingdom
    • House of Lords
    • 17 October 2007
    ...capable of existing as an easement." But Judge Paul Baker in the London & Blenheim Estates case formulated, and the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764 applied, a test that disqualified the right to park from existing as an easement if, per Judge Paul Baker: "… the right......
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4 books & journal articles
  • Particular Easements and Examples of Analogous Remedies of Relevance to Development
    • United Kingdom
    • Wildy Simmonds & Hill Restrictions on the Use of Land Part I. Easements and profits à prendre
    • 30 August 2016
    ...a gate which had to be kept open during business hours and should never be locked. 23 See para 1.11, point (b). 24 Batchelor v Marlow [2001] EWCA Civ 1051. 25 Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch); Saeed v Plustrade Ltd [2001] EWCA Civ 2011; Montrose Court Holdings Ltd v Shamash [200......
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    • Canada
    • Irwin Books The Law of Property
    • 5 August 2021
    ...96, 180 Barton v Raine (1980), 114 DLR (3d) 702, 29 OR (2d) 685 (CA) ...................... 153 Batchelor v Marlow, [2001] EWCA Civ 1051, [2003] 1 WLR 764 ..................... 145 Batty v Toronto, 2011 ONSC 6862 ........................................................................17 BC ......
  • Other Interests in Land
    • Canada
    • Irwin Books The Law of Property
    • 5 August 2021
    ...Park , above note 56 at 164 and 175. 81 See Sturgeon Hotel Ltd v St Albert (City) (2010), 504 AR 202 (QB); Batchelor v Marlow , [2001] EWCA Civ 1051, [2003] 1 WLR 764; Moncrief v Jamieson , above note 61. THE LAW OF PROPERTY 146 The problem with the easement in Ellenborough Park was that it......
  • Easements
    • United Kingdom
    • Wildy Simmonds & Hill Restrictions on the Use of Land Part I. Easements and profits à prendre
    • 30 August 2016
    ...LJ. 28 [1952] Ch 488. 29 [1992] 1 WLR 1278 at 1288C, per HHJ Baker QC. This was assumed to be correct on appeal at [1994] 1 WLR 31. 30 [2001] EWCA Civ 1051, [2001] 1 EGLR 119. 8 Restrictions on the Use of Land test) that an easement could not exist to park cars on a strip of land during bus......

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