[2025] UKUT 204 (LC)

I have already dealt with the argument in Ground 2, in my analysis of Ground 1(a). For the reasons which I have given in my analysis of Ground 1(a) I consider that the FTT was right to exclude the summer months, when the Disputed Easement would not have effect, from its consideration of the Ouster Question. The FTT was not therefore wrong to leave the summer months out of account, in its consideration of the Ouster Question.

As I have also explained in my analysis of Ground 1(a), the reasoning of Peter Gibson LJ in Platt was not relevant in the present case, because there was no temporal restriction on the mooring rights which were claimed in Platt.

I should add two further points to my analysis of Ground 2.

First, if it is assumed, contrary to my view, that the FTT should have taken the summer months into consideration, it does not seem to me necessarily to follow that the Ouster Question would have received a different answer from the FTT. This would have required a consideration of the impact upon the Respondent of being able to use the Triangle for only four months in every period of twelve months, with no use of the Triangle in the remaining eight months. In the grounds of appeal it is asserted that during the summer months, there is no interference with the Respondent’s use of the Triangle, because the Appellant’s boats are no longer stored there. Whether this assertion is correct, in circumstances where the Respondent is confronted with a situation where it can make no use of the Triangle for eight months out of every twelve months, seems to me a matter for speculation.

Second, the grounds of the appeal assert that during the winter months, that is to say the Relevant Period, there is no significant interference with the Respondent’s use of the Car Park. This assertion seems to me to contradict the Appellant’s argument, which I have accepted, that for the purposes of answering the Ouster Question one must concentrate on the servient land; in this case the Triangle. Independent of this point, it does not seem to me that there is a finding on the evidence, in the Decision, which supports this assertion. The assertion appears to me to be a matter for speculation.

For the reasons which I have given, I conclude that Ground 2 fails as a ground of appeal.