William Batchelor v Peter Robert Marlow and Another
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 2000 |
| Judgment citation (vLex) | [2000] EWHC J0511-9 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 May 2000 |
| Docket Number | CH 1999 No 00520 |
[2000] EWHC J0511-9
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ROYAL COURTS OF JUSTICE
CH 1999 No 00520
of Mr Nicholas Warren QC
(sitting as a deputy Judge of the High Court)
This is the official judgment of the court and I direct that no further note or transcript be made
Judgment: Approved by the court for handing down (subject to editorial correction)
BATCHELOR V MARLOW
Introduction
The Claimant in this case is the owner of certain land in Sutton, Surrey. The Defendants (Mr and Mrs Marlow) claim to be entitled to certain easements over part of that land, in respect of which Mr Marlow has registered a caution against first registration. The Claimant seeks removal or cancellation of the caution. He also seeks a declaration that neither the Defendants nor persons authorised by them are entitled to park on the land concerned. He also seeks a declaration as to the extent of a right of way which the Defendants are entitled to over part of the land as access to a property known as the Mission Hall of which the Defendants are now the registered proprietors. The extent of the Defendants' rights if any is important to the Claimant as the land concerned features in a proposed development in which the Claimant, with others, is involved.
The physical location
There are a number of areas which I should identify:
a. 41 Morland Road: these are garage premises from where Mr Marlow and later Mrs Marlow have carried on business servicing and repairing motor cars.
b. Morland Road, at its east end, runs into Alfred Road (which runs north/south): 41 Morland Road is on the north side of the road at the junction with Alfred Road.
c. At its south end, at a not very great distance from Morland Road, Alfred Road ends and runs into Albert Road, which runs east from where they meet. At the west end of Albert Road is the side wall of the property 56 Morland Road belonging to a Mr Thomas (whose evidence I consider later).
d. Albert Road is, at the west end, not metalled and has not been adopted. The road is privately owned, but there is a public right of way along it. The public right of way does not extend to the whole width of the road: to both the north and the south of the dirt track which represents the width of the public right there are strips of land which, it is accepted on both sides, are not part of the public right of way. There is a similar strip of land running north/south at the western end of Albert Road. Thus, proceeding west along Albert Road, the public right of way turns right (north) as Albert Road ends and Alfred Road begins. On the left, the strip of land runs turns the corner too.
e. To the south of Albert Road —that is to say, to the south of the strip of land which is not part of the public highway —and between it and the railway embankment which runs parallel to Albert Road, is the property 71 Albert Road. This is the site of what was formerly a Mission Hall and I shall refer to it as the Mission Hall Site.
f. Until its purchase in 1994 by the Marlows, the Mission Hall Site was owned by the trustees of the Clifton Hall Trust and the building on it was used for religious worship. The Mission Hall Site was surrounded by fences or hedges. Access was through a gate on the north boundary, over the narrow strip of land to the public highway running over Albert Road.
g. Mr and Mrs Marlow claim to have established prescriptive parking rights over part of the strip of land which I have mentioned above; it includes the strip at the west end of Albert Road and part of the strip to the south of the public right of way running eastwards. The area over which the parking easement is claimed was eventually identified on behalf of the Marlows as (and which I will refer to as) the Pink Land as shown on a plan (which is to be found at page 97 of the Bundle): it runs the length of the north boundary of the Mission Hall Site and beyond it by a distance of about half that length again. The plan (taken from the Ordnance Survey) shows on both sides of Albert Road dotted lines which represent physical features on the ground. It is accepted by both sides (a) that the public right of way is narrower than the area between the dotted lines and (b) that the Pink Land forms the area south of the public right of way and does not encroach onto the public right of way (although it does extend towards the middle of the road from the dotted lines).
h. Finally, I should mention that opposite the Mission Hall Site lives Mrs Reyes who gave evidence: she lives on the corner of Alfred Road and Albert Road, her address being 16A Alfred Road.
The evidence
The following facts are uncontroversial.
a. The Mission Hall Site had, since about 1964 or 1965, been used as a place of worship by the Clifton Hall Fellowship. They held, initially, under a lease or series of leases from the British Railways Board which was the owner of that Site and the adjoining land, including Albert Road. The trustees of the Clifton Hall Trust acquired the freehold on 17 August 1984. The leases and the transfer contained no express grant of any rights of way over any part of Albert Road, and in particular the strip of land between the Mission Hall Site and the public right of way over Albert Road.
b. Mr and Mrs Marlow purchased the Mission Hall Site from the trustees at the end of 1993, being registered as proprietors in January 1994 following a transfer dated 30 November 1993.
c. Access to the Mission Hall Site from 1964 until the Mission Hall ceased to be used for religious services and the Site was sold, was pedestrian and car access for the purposes of the Mission Hall as a place of worship. Cars —at this stage I say nothing about the number —were parked within the Site at the time of services. Members of the Fellowship sometimes parked on the Site at other times. Access was also available to a gardener who would come with a mowing machine to keep the grass under control.
I heard evidence from Mr Batchelor and Mr Marlow, from a number of local residents (Mr Thomas, Mrs Reyes, Mr Sinclair, Mrs Woolley and Mr Gunning) as well as from Mr Ridewood and Mr Knappett (brethren of the Fellowship), Mr Ellis (a planning consultant working for the local authority), Mr Eddis (Mr Batchelor's solicitor) and Mr Wilson (who carries out MoT tests for the Marlows' customers). My attention was also drawn to statutory declarations relating to the use over the years of the Pink Land sworn by Mr Gallon (another local resident) and by Mr Harding (another of the brethren). I can dispose of Mr Batchelor's evidence immediately: he came on the scene late in the day and the matters of which he could speak directly do not assist me in deciding what rights the Marlows might have obtained. The matters in respect of which he can speak indirectly are dealt with in the undisputed documents or directly by the witnesses.
I need to deal at some length with what Mr Marlow has at various times had to say about parking.
a. On 18 December 1990 Mr Marlow made a statutory declaration in support of his application to register a caution against first registration. He claims that he had
"In excess of 20 years regularly parked in the region of 18 cars each day on the area of land shaded yellow on the plan annexed to the foregoing caution…"
b. Unfortunately, the plan is not available but the position is explained by Mr Marlow's solicitors in a letter dated 28 August 1997 to the Croydon District Land Registry by reference to the plan which I have referred to at paragraph 2g above. They wrote:
"When Mr Marlow lodged his caution against first registration in 1990, he claimed rights over part of the land coloured yellow on the appended plan, but in fact the whole of the roadway was erroneously coloured pink. We should make it clear that the Marlows claim a right of way (both vehicular and over the whole of Alfred Road which is coloured yellow of the accompanying plan), but they only claim parking rights over the part of Alfred Road [clearly that should be Albert Road in each case] which is coloured pink on the accompanying plan.
This explains what it is that the Marlows then claimed although it does not specify the number of cars: that was only identified in the course of the current proceedings, the exclusive right to park up to 8 cars being claimed.
c. As to parking, in an affidavit sworn on 8 January 1999, Mr Marlow states that since 1970, he and his wife had parked "up to 18 vehicles along the side of Albert Road including on the pink land"; and that since the acquisition of the Mission Hall Site "we have continued to park up to 8 vehicles on the pink land; most of the cars are either owned by us or are the cars of customers which are in our possession pending repairs". He refers also to the ability to park cars on the pink land as an integral part of his garage business. He denies that the pink land has been used as a general free for all so far as parking is concerned.
d. He says that his parking on the pink land as been "effectively to the exclusion of all other vehicles and that the Pink Land has always been "treated as being an integral part of our business by locals…". In this context, he refers to "the odd occasion when an interloper parked on our patch": the result was that a local builder would forklift them onto the yellow lines (ie the parking control lines) "which instantly deterred interlopers from parking on our patch".
e. Mr Marlow's witness statement dated 19 August 1999 is to much the same effect. He expands on the use made of the Pink Land, explaining that over the years he has purchased vehicles which have failed their MoT test and had carried out work to restore them. He states
"All of the vehicles that are purchased for the purposes of restoration are parked on the pink land and have been...
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