[2025] UKUT 204 (LC)

The Respondent contested the claim to the Disputed Easement on a number of grounds. For present purposes it is not necessary to go through the findings of fact made by the FTT, which heard evidence from five witnesses on behalf of the Appellant, in addition to the Appellant himself, and from one witness on behalf of the Respondent. Instead, it is sufficient to summarise the findings and decisions of the FTT on the principal grounds of dispute.

The FTT found that the Appellant had established continuous yearly use of the Triangle, since 1982, for the storage of up to six boats during the period from October to May. The FTT summarised its findings on the question of whether there had been continuous use and on the question of whether there had been a cessation of use, sufficient to interrupt the period of prescription, in the following terms at Paragraph 30:

“30.

I consider that the question of continuity and cessation must be viewed in the context of the right claimed, which operates from October to May. It was accepted that a prescriptive easement is capable of being seasonal, and by its nature the continuity required is within that period, not all year round – there can be no cessation of user outside that period. It is possible that user might cease at some point, but that is true of any easement in the process of acquisition by prescription. It would only be if there was a cessation during the winter months that there would be a break in the necessary continuity, and in the present case there is no evidence of that.”

The FTT was satisfied that the Appellant’s use of the Triangle had been as of right, and had not been by force, or in secret, or by the permission of the Respondent; see Paragraphs 31-36.

The FTT was satisfied that there had been a capable grantor (the Respondent) and a capable grantee (the Appellant) in respect of the Disputed Easement; see Paragraphs 37-41.

The FTT rejected the argument that the exercise of the Disputed Easement would constitute a public nuisance in respect of the Triangle; see Paragraphs 42-44.

The FTT then came to the question of whether the four conditions for the recognition of a right as an easement were satisfied; namely (i) there must be a dominant and a servient tenement, (ii) the easement must accommodate the dominant tenement, (iii) the dominant and servient owners must be different persons, and (iv) the easement must be capable of forming the subject matter of a grant.

The FTT was satisfied that the first three of these conditions were satisfied. The Appellant’s Beach Huts were the dominant tenement. The Triangle was the servient tenement. The rights over the Triangle claimed by the Disputed Easement did accommodate the Appellant’s Beach Huts as the dominant tenement. The Appellant’s Beach Huts and the Triangle were, respectively, in different freehold ownership.

This left the question of whether the Disputed Easement was capable of forming the subject matter of a grant. The FTT considered this question at Paragraphs 52-66. I will need to come back to the reasoning of the FTT later in this decision. For present purposes, I can summarise the reasoning of the FTT in the following terms.

The FTT commenced its analysis, at Paragraph 52, by identifying the issue which it was required to consider in this context, referred to as “the ouster issue”:

“52.

As to requirement (4) – the easement must be capable of forming the subject-matter of a grant – this involves consideration of easements of storage and parking, and what has become known as the ouster issue: that the right cannot be so extensive or invasive as to oust the servient owner from the enjoyment or control of the servient tenement.”

The FTT then proceeded to review relevant case law. On the basis of this case law the FTT identified the question which it had to answer in the following terms, at 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?”

The FTT found, at Paragraph 60, that the answer to the question posed in Paragraph 59 was yes. If the Appellant’s Beach Huts had the benefit of the Disputed Easement, the Respondent would be left without any reasonable use of the Triangle. The FTT stated this finding, and its reasons for this finding in the following terms:

“60.

For the following reasons I find that this is the case. Copeland v Greenhalf is the most similar case on its facts, which concerns storage rather than the parking of vehicles and in which some space was left for access. That is the case here for the period October to May during which the storage of six boats, leaving no room for anything else, would give Mr. Stenner exclusive use of the Boat Storage Area during that period. Mr. Palfrey sought to distinguish Copeland on the basis that Mr. Stenner’s use is only for part of the year, but the period is of 7 to 8 months which is a substantial part of the year. Unlike parking cars, the storage is not intermittent or restricted to certain times or days of the week. Once boats have been put in the Boat Storage Area their storage is continuous until they are moved back to moorings at the beginning of the season the following year, save for occasions when a boat needs to be taken elsewhere for specialist repair work. It is correct that TDC can use the Boat Storage Area as car parking space during the summer months, but no easement is claimed during that period.”

The FTT thus concluded that the Disputed Easement was not capable of forming the subject matter of a grant.

The FTT was not persuaded by the argument of the Appellant’s counsel that Copeland v Greenhalf[1952] Ch 488 could be distinguished. As the FTT explained, at Paragraphs 61 and 62:

“61.

Mr. Palfrey also sought to distinguish Copeland on the basis that there are other uses to which the Boat Storage Area can be put during October to May and significant rights that could be granted by TDC such as painting lines over or resurfacing the Boat Storage Area. In my view, with six boats, perhaps even fewer, stored in the Area it would not be possible to paint or resurface; such matters would have to wait until the boats were removed.

62.

There is, of course, the possibility of TDC granting a licence for the storage of gigs in the Boat Storage Area, as was done with the rowing club, but during the period October to May any such licence could not be exercised as there would be no space available due to the presence of the boats. As mentioned above, this is exactly what happened with the gigs, which were placed outside the Boat Storage Area when the boats were moved into it.”

At Paragraph 63 the FTT went on to consider some further case law, postdating the decision of the Court of Appeal in Batchelor v Marlow [2001] EWCA Civ 1051. The FTT did not consider this further case law to be particularly relevant, for the reasons explained in Paragraph 63:

“63.

Mr. Palfrey provided several post-Bachelor cases. To a certain extent they turn on their own facts, and largely concern rights to park, which in my view are rather different from a right to long-term storage such as that under consideration here. Nevertheless, the following should be mentioned.”

The FTT’s analysis of this further case law, and its findings are set out in Paragraphs 64-66:

“64.

A right to park likely cannot subsist as an easement if part of the servient 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 (Montrose Court Holdings Ltd and ors v Shamash and ors [2006] EWCA Civ 251, Lord Justice Chadwick, para 30). 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.

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.

66.

There have been occasions when all or part of a car has parked within the Boat Storage Area – for example, when Mr. Stenner was issued with a parking fine – but the evidence did not establish this was anything other than occasional and in my view could not take place when six boats were stored within the Area.”

On the basis of the decision of the FTT that the Disputed Easement was not capable of forming the subject matter of a grant, the Appellant’s claim to the Disputed Easement failed; see Paragraph 67.