[2025] UKUT 204 (LC)

Fecha: 26-Jun-2025

The grounds of appeal

The grounds of appeal

30.

There are three grounds of appeal, as follows.

31.

The first ground of appeal (“Ground 1”) effectively comprises four grounds or sub-grounds of appeal, which I will refer to as “Ground 1(a)”, “Ground 1(b)”, “Ground 1(c)” and “Ground 1(d)”.

32.

So far as Ground 1 is concerned, the FTT asked itself the following question, at Paragraph 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?”

33.

The Appellant contends that the FTT went wrong in answering this question in the following ways:

(1)

Ground 1(a) - The FTT was wrong to place so much weight on the case of Copeland v Greenhalf, the facts of which are said to have been significantly different to the present case.

(2)

Ground 1(b) - The FTT identified, in Paragraph 65, that pedestrian use could be made of the Triangle, even when boats were stored on it, but then disregarded that use on the basis that other access was available to the Car Park on foot. It is contended that this was the wrong approach, on the basis that such use of the servient tenement is not rendered irrelevant simply because neighbouring land has the same, or similar use.

(3)

Ground 1(c) - The FTT failed to take into account other uses which the Respondent could make of the Triangle, such as for drainage, running utilities under or over the Triangle, providing lighting, providing seating for visitors, and so on. The FTT, it is contended, appears to have placed too much emphasis on the Respondent’s use of the Triangle for public parking.

(4)

Ground 1(d) - 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 [1949] 2 K.B. 744. Had the FTT done so, it is contended, the FTT could not reasonably have found the Respondent to have been left, by the Disputed Easement, with no reasonable use of the Triangle.

34.

The second ground of appeal (“Ground 2”) is that the FTT was wrong to disregard the effect of the temporal nature of the Disputed Easement on the Respondent’s enjoyment of its land. The Appellant relies upon the decision of the Court of Appeal in P&S Platt Ltd v Crouch [2003] EWCA Civ 1110 [2004] 1 P&CR 18 to contend that, in the present case, the temporal nature of the use of the Triangle means that such use is not capable of depriving the Respondent of any reasonable user of the Triangle.

35.

The third ground of appeal (“Ground 3”) refers to the following statement of Chadwick LJ in Montrose Court Holdings Ltd v Shamash [2006] EWCA Civ 251, at [30]:

“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.”

36.

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.