[2025] UKUT 204 (LC)

It was common ground that the FTT, in addressing what it referred to as the ouster issue, asked itself the correct question at Paragraph 59, derived from London & Blenheim Estates. For ease of reference I repeat Paragraph 59:

“59.

Both counsel accepted that Moncrieff v Jamieson did not overrule Batchelor, which remains binding in the High Court and on this Tribunal, and it is the relevant test that I should apply – if the Beach Huts have the benefit of a right to store up to six boats in the Boat Storage Area during the winter months beginning 1 October through to 31 May each year, will TDC be left without any reasonable use of the Boat Storage Area?”

It follows that, if the Appeal is to succeed, the Appellant must demonstrate that the FTT went wrong, in answering this question, in such a way as to invalidate its answer. I will refer to this question, namely whether the Disputed Easement would leave the Respondent without any reasonable use of the Triangle, as “the Ouster Question”.

In this context another of the cases cited to me, which I have mentioned in my summary of the grounds of appeal, is of particular relevance. In P&S Platt Ltd v Crouch the defendants had been the owners of three pieces of land, comprising a hotel, a house and a bungalow on an island in a river. There were river moorings on the island which had been used by the hotel for its guests. The claimant acquired the hotel, with an option, which was not exercised, to acquire the house and bungalow. The claimant sought a declaration that the mooring rights had passed with the transfer of the hotel, pursuant to Section 62 of the Law of Property Act 1925 and the rule in Wheeldon v Burrows (1879) 12 Ch D 31. The claimant also sought an injunction to prevent the defendants from interfering with the mooring rights. At first instance Judge Richard Seymour, sitting as a Judge of the High Court, decided that the mooring rights had passed with the transfer, pursuant to Section 62.

The defendants appealed to the Court of Appeal. The appeal was dismissed. For the purposes of the Appeal the relevance of this case lies in the fact that one of the issues, in relation to the application of Section 62, was whether the rights claimed by the claimant deprived the defendants of the beneficial use of their retained land such that the rights were not capable of being easements. Judge Seymour had rejected the defendants’ argument that the right to use the river moorings was not capable of being an easement, by reason of the ouster principle. The principal judgment in the Court of Appeal was given by Peter Gibson LJ. Longmore LJ delivered a short concurring judgment. Dyson LJ agreed with both judgments. In his judgment, at [43] and [44], Peter Gibson LJ recorded the argument of the defendants in the following terms:

“43.

It is not in dispute that a right will only pass under s.62 if it is a right capable of existing as an easement (Megarry & Wade op.cit. para.18–113). It is also common ground that the rights claimed by the claimant are in principle capable of being easements.

44.

However, Mr Caddick relies on the line of authorities which say that if the right claimed would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, that right is not capable of being an easement (see Copeland v Greenhalf [1952] Ch. 488 at 498 per Upjohn J., London & Blenheim Ltd v Ladbroke Retail Parks Ltd [1992] 1 W.L.R. 1278 at p.1288C per H.H. Judge Paul Baker, Q.C. sitting as a High Court judge and Batchelor v Marlow (2001) 82 P. & C.R. 36).”

In terms of the ability of the Court of Appeal to interfere with the decision of Judge Seymour on the question of whether the claimed right left the defendants with any reasonable use of their retained land, Peter Gibson LJ identified the correct approach in the following terms, at [45]:

“45.

Essentially this is a question of fact and degree on which this court will only interfere with the assessment of the trial judge if persuaded that the judge made some significant error or was otherwise plainly wrong. His view was that there was only minimal interference through the rights with the use of the servient tenement.”

Mr Petts accepted, in his written and oral submissions, that I could only interfere with the decision of the FTT on the ouster issue if I was persuaded that the FTT had made some significant error or was otherwise plainly wrong in answering the Ouster Question; that is to say the question of whether the Disputed Easement, if it existed, would leave the Respondent without any reasonable use of the Triangle. I agree with Mr Petts that this is the correct approach.

It is therefore for the Appellant to persuade me that the FTT made some significant error or was otherwise plainly wrong in answering the Ouster Question.

As I have said, Ground 1 effectively comprises four grounds or sub-grounds of appeal; Grounds 1(a)-1(d). I will take them in turn.