[2025] UKUT 204 (LC)

Ground 3 engages the following statement of Chadwick LJ in Montrose Court Holdings Ltd v Shamash [2006] EWCA Civ 251, at [30], which I repeat for ease of reference:

“30.

I would add that I am not persuaded that a right to park can subsist as an easement if part of the serviced land is to be occupied for a continuous period of 72 hours to the exclusion both of the freeholder and of all others having a like right. But it is not necessary to decide that point on this appeal. It is enough to say that the regulation was properly made in relation to the temporal limitation as well as in relation to the numeric limitation to one vehicle at a time.”

The Appellant’s case is that the FTT was wrong, at Paragraph 64, to place any reliance on this statement in finding that the Respondent would be left without any reasonable use of its land, let alone so as to make its ownership of that land illusory.

It seems to me that there are two difficulties with this ground of appeal.

First, if it is assumed that the FTT was wrong to place reliance on the statement of Chadwick LJ, I cannot see that this was material to the answer given by the FTT to the Ouster Question. If one notionally removes Paragraph 64 from the Decision, I cannot see that this would have made any different to the FTT’s answer to the Ouster Question. The essential reasoning of the FTT, in answer to the Ouster Question, can be found in Paragraph 60. If the FTT should have disregarded Chadwick LJ’s statement, or given the same no weight, this would not have affected the reasoning in Paragraph 60 or, for that matter, the reasoning in Paragraphs 61-63 and Paragraphs 65-66.

As such, and assuming an error on the part of the FTT in placing reliance upon the statement of Chadwick LJ, I cannot see the FTT made a material or significant error, or arrived at an answer to the Ouster Question which was wrong, let alone plainly wrong.

Second, what I have just said assumes that the FTT was wrong to place any reliance on the statement of Chadwick LJ. I do not think that the FTT was wrong in what it said in Paragraph 64. I say this for the following reasons.

Starting with the decision in Montrose Court itself the issue in that case which is relevant to the present case was whether the owners of an estate were entitled impose certain parking regulations over the service road and forecourt of the estate, for the purposes of regulating the parking of cars by residents of the estate. In the case of the flats and houses on the estate which were held on leases, the estate owners had an express right to impose the parking regulations. This was not however the position with the defendants, Mr and Mrs Shamash who, the judge at first instance decided, had acquired the freehold interest in their house on the estate with the benefit of a right of parking on the service road.

The estate in question comprised a development of flats and houses at the northern/Hyde Park end of Exhibition Road in London, between Princes Gate and Princes Garden. Parking regulations were required because there were around 114 parking spaces available within the development, and around 100 households. Given the fact of multiple car-ownership within households, there was excess demand for residents’ parking spaces. The regulations were intended to control parking by the issue of permits to residents. The regulations provided for only one permit to be issued to each household. The regulations also included a regulation which, in the case of a resident’s permit which specified more than one car, limited the parking to only one of those cars at any one time. The same regulation also provided that a car could only be parked on a particular parking space for up to 72 hours, if space was available.

The judge at first instance made a declaration that the estate owners could validly make regulations. He decided however that each of the defendants was entitled to a parking permit, which meant that there were two permits for the defendants’ household, rather than the single permit per household which was intended by the regulations. This in turn meant that the defendants could park two cars on the estate at the same time. The effect of the judge’s declaration was also that the defendants became bound by the restriction to 72 hours parking on a particular space at any one time. The estate owners appealed against the judge’s decision that each of the defendants was entitled to a permit. The defendants cross-appealed against the judge’s decision that the parking regulations could restrict their parking to a temporal limit of 72 hours at any one time.

The Court of Appeal allowed the appeal of the estate owners and dismissed the cross-appeal of the defendants. In his judgment, with which Moore-Bick and Collins LJJ agreed, Chadwick LJ summarised the position in the following terms, at [28] and [29]:

“28.

For those reasons it seems to me that the regulations in the present case which limited the right to park to the parking of one vehicle at a time were proper regulations to make. They were regulations which can be seen as necessary if all those having the right to park on the service road are to be able to enjoy that right in orderly competition.

29.

In relation to the temporal restriction to parking for no more than 72 hours at any one time the judge applied that test correctly. He said this, at paragraph 25 of his judgment:

"The regulation limiting the period of parking to 72 hours only is no doubt an inconvenience. It is directed to ensuring some opportunity for changeover in occupation of parking spaces. Since the right to park is in common with others and not only other householders, such objective does seem to me to be consistent with ensuring to the grantee the benefit of the grant whilst so managing it as to enable others to share the parking space."

That, if I may say so, is a correct statement of the principle. The judge applied that principle correctly in relation to the temporal limitation to 72 hours; but failed to apply it in relation to the numeric limitation to one vehicle at a time.”

Chadwick LJ then added the statement, at [30], which I have quoted above.

It seems to me that the point which Chadwick LJ was making at [30], which was obiter to the actual decision of the Court of Appeal in Montrose Court, was that a right to park which involved the exclusion of the freeholder and all others having a like right could “likely” not subsist as an easement. In principle I cannot see how this statement was inconsistent with the law as stated in Copeland v Greenhalf, Batchelor v Marlow and other such cases. Where the effect of the relevant right is to leave the owner of the servient land without any reasonable use of the land the ouster principle is engaged and the right is not an easement. Whether the ouster principle is engaged in a case where the period of exclusion is limited to 72 hours seems to me to be a question which does not necessarily admit of a single answer. It seems to me that the answer to the Ouster Question is a fact sensitive question, which falls to be answered on the evidence in any particular case, applying the guidance to be found in the relevant case law.

Returning to Paragraph 64, and the reliance of the FTT upon the statement of Chadwick LJ in Montrose Court, at [30], it is important to identify what the FTT actually said. After setting out the statement, the FTT said this:

“In the present case, apart from the spaces between the stored boats, the servient land will be occupied by boats for a continuous period considerably longer than 72 hours.”

This conclusion did not depend, for its validity, on the correctness of the proposition that a right to park, to the exclusion of all others, for a continuous period of 72 hours could not subsist as an easement. Chadwick LJ did not himself suggest that this proposition was necessarily correct. He used the word “likely”. Beyond this, the FTT was plainly both entitled to note, and correct to note, on the findings of the FTT on the evidence, that the period of exclusion in the present case was the entirety of the Relevant Period; that is to say a period of eight months comprising the entirety of the period during which, in each year, the Disputed Easement was claimed to be in effect.

In these circumstances, it seems to me that the FTT was quite entitled to regard what was said by Chadwick LJ in Montrose Court, obiter as it was, as a further reinforcement of the answer to the Ouster Question which it had already reached. I cannot see that the FTT made any error in this respect, let alone any significant error, or that the FTT thereby arrived at any answer to the Ouster Question which was wrong, let alone plainly wrong.

For the reasons which I have given, I conclude that Ground 3 fails as a ground of appeal.