[2025] UKUT 204 (LC)

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.