[2025] UKUT 204 (LC)

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.