Batchelor v Marlow
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY,LORD JUSTICE KAY,LORD JUSTICE HENRY |
| Judgment Date | 28 June 2001 |
| Neutral Citation | [2001] EWCA Civ 1051 |
| Docket Number | No:A3/2000/2233 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 2001 |
[2001] EWCA Civ 1051
Lord Justice Henry
Lord Justice Tuckey
Lord Justice Kay
No:A3/2000/2233
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (MR NICHOLAS WARREN QC)
Royal Courts of Justice
Strand
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
( )
LORD JUSTICE TUCKEYAlbert 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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