[2025] UKUT 204 (LC)

Ground 1(d) is that the FTT was wrong not to take into account the extent of the dominant tenement’s extensive use of the coal shed for storage in the case of Wright v Macadam. The argument is that if the FTT had done so, the FTT could not reasonably have found the Respondent to be left with no reasonable use of the Triangle.

It seems to me that there are a number of difficulties with this argument.

First, it is not disputed that the FTT asked itself the right question; namely the Ouster Question. In answering the Ouster Question the FTT had to make its own judgment of fact and degree, on the evidence before the FTT, as to whether the Disputed Easement would leave the Respondent with any reasonable use of the Triangle. I cannot see that the FTT was obliged to take Wright v Macadam into account in answering the Ouster Question, or that Wright v Macadam was decisive of the Ouster Question. It seems to me that it was a matter for the evaluative judgment of the FTT as to what weight, if any, it gave to Wright v Macadam in answering the Ouster Question.

Second, this ground of appeal assumes that Wright v Macadam was not taken into account by the FTT. I do not accept this. I understand that Wright v Macadam was cited to the FTT. I have no doubt that the FTT therefore considered Wright v Macadam. So far as I can see Wright v Macadam is not referred to in the Decision. The FTT was not obliged to record in the Decision every case cited to it by the parties. The same applies to the arguments of the parties and the evidence heard by the FTT. Demands by parties that everything said to a tribunal or court in the course of a hearing be recorded in the decision or judgment impose an unnecessary and undesirable burden on tribunals and courts. The same applies to appeals launched on the basis, without more, that a particular case or argument or piece of evidence has not been the subject of express reference in the decision or judgment. Such appeals should be treated with caution. As I have said, I have no doubt that the FTT did take Wright v Macadam into account. Wright v Macadam was not decisive of the Ouster Question and, as I have also said, it was a matter for the FTT as to what weight, if any, to give to Wright v Macadam.

Third, the Appellant’s argument seeks to take from Wright v Macadam considerably more than can actually be found in the decision. The principal issue before the Court of Appeal in Wright v Macadam was whether what had previously been a permissive right to use the shed for the storage of coal had taken effect as a right passing with the conveyance, on the renewal of the tenancy, by the operation of Section 62 of the Law of Property Act 1925. One of the questions which arose was whether, for the purposes of Section 62, the right to store coal in the shed was a right capable of being granted at law. The Court of Appeal decided that it was. Wright v Macadam is thus authority for the proposition that a right of storage can exist as an easement.

I refer back to my earlier analysis of Wright v Macadam. So far as I can see, it was not argued in Wright v Macadam that the right of storage was not one which could exist as an easement, by reason of the ouster principle. The ouster principle does not seem to have been raised. Instead, the defendant’s counsel concentrated on the argument that the right had been permissive only, and for that reason was not one in respect of which Section 62 could operate, and on the argument that the right was too uncertain, in the absence of precise evidence as to how the right had been and was to be enjoyed. What would have happened if counsel for the defendant had argued that the right left the defendant without any reasonable use of the shed must, it seems to me, be a matter for speculation.

I accept the point made by Mr Ball in this context, which is that there is little information to be gleaned from the report of Wright v Macadam as to the way in which the shed had been used by the first plaintiff for the storage of coal. This reinforces the point which I have just made; namely that it must be a matter for speculation what would have happened if it had been argued by the defendant’s counsel that the claimed right of storage left the defendant without any reasonable use of the shed. This, in turn, seems to me to render it something of a futile exercise to seek to reconcile the decisions in Wright v Macadam and Copeland v Greenhalf. In Copeland v Greenhalf the ouster principle was fully engaged and was fully investigated, both in the evidence and in the argument, as reflected in the decision of Upjohn J. This was not the position in Wright v Macadam, which is why I find it difficult to treat Wright v Macadam as authority for anything more than the proposition that the law will, in principle, recognise an easement of storage. What were not considered in Wright v Macadam were the difficulties which an easement of this kind can create when it comes to the application of the ouster principle. It is those difficulties which the courts and tribunals have had to deal with in subsequent cases.

Fourth, if it is assumed that the FTT failed to take Wright v Macadam into account, but should have done so, I cannot see how this justifies the Appellant’s assertion that, on this hypothesis, the FTT could not reasonably have found the Respondent to be left with no reasonable use of the Triangle. Given the findings made by the FTT on the evidence, I cannot see how the FTT could have reached any other conclusion than that the Disputed Easement would leave the Respondent without any reasonable use of the Triangle during the Relevant Period. I can see nothing in Wright v Macadam which would have justified a different conclusion, let alone compelled a different conclusion.

For the above reasons, I conclude that the FTT made no error in relation to Wright v Macadam. If, contrary to my view, the FTT did make an error in relation to Wright v Macadam, I cannot see that the error constituted a significant error or resulted in an answer to the Ouster Question which was wrong, let alone plainly wrong.