[2025] UKUT 204 (LC)

The application for registration of the benefit and burden of the Disputed Easement failed by reason of the FTT’s analysis and application of what was referred to as “the ouster issue”; see Paragraph 52 (quoted above).

The ouster issue referred to one of the requirements which must be met if a right claimed by way of an easement is to be capable of forming the subject matter of a grant. The origin of this ouster issue, or ouster principle as it is sometimes referred to, can be traced back, at least so far as the authorities cited to me were concerned, to the decision of the House of Lords in Dyce v Hay (1852) 1 Macq 305 HL (SC). This was a Scottish case involving a claim to a prescriptive right for the public at large to use a strip of land for the purpose of recreation. The right claimed was a public right rather than a servitude; a servitude being a Scottish right with similarities to an easement under the law of England and Wales. In his opinion on the case the Lord Chancellor, Lord St Leonards, stated that the right was one which could not be maintained and ought not to be maintained. The sidenote to the report states as follows:

“There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected.”

While this is a statement in the sidenote to the report, it is derived from what was said by Lord St Leonards in his opinion, in particular at 309:

“What is insisted upon, therefore, is of this extensive nature, that the Pursuer claims as an inhabitant, but, in fact, on behalf of all the Queen’s subjects, the right to go at all times upon the inclosed soil of a portion of the Appellant’s property near the mansion-house, for the purposes of recreation just as they think proper. Now, that I conceive is a claim so large as to be entirely inconsistent with the right of property; for no man can be considered to have a right of property, worth holding, in a soil over which the whole world has the privilege to walk and disport itself at pleasure.”

A more recent articulation of the ouster principle, as it has been called, can be found in the judgment of Judge Paul Baker QC, sitting as a Judge of the High Court, inLondon & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 [1993] 1 All ER 307. The case was concerned with a transfer of land which had included the grant of a right to park cars on retained land of the transferor. The principal issue in this case was whether the benefit of this right of parking could be claimed in relation to additional leasehold land which was not part of the originally transferred land, as against a successor in title of the original transferor, as owner of the retained land. The issue arose because the grant of the right of parking was expressed to extend to subsequently acquired land, subject to the conditions set out in the transfer. The judge decided that the right could not be claimed for the benefit of the additional leasehold land. This was sufficient to decide the case, but the judge also went on to consider the remaining issues in the case, which included the question of whether the right to park granted by the transfer could exist as a valid easement.

Following a review of the authorities cited to him on this issue, the judge concluded that the right to park cars could amount to an easement. In answering the question of whether a right to park cars did qualify as an easement, the judge stated the ouster principle, and its application in the case before him, in the following terms, at 1288C-D (the underlining is my own):

“The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant. The rights sought in the present case do not appear to approach anywhere near that degree of invasion of the servient land. If that is so—and I emphasise that I have not gone into the facts—I would regard the right claimed as a valid easement.”

I should mention that the decision of Judge Paul Baker was appealed to the Court of Appeal. The appeal was however dismissed and in his judgment, with which Beldam and Ralph Gibson LJJ agreed, Peter Gibson LJ dealt only with the issue of whether the right of parking granted by the original transfer could extend to the subsequently acquired leasehold land. For the reasons given in his judgment Peter Gibson LJ concluded that the right could not extend to the leasehold land, which was sufficient to dispose of the appeal.

The application of the ouster principle has not proved to be straightforward in the case law. The position is summarised in the following terms by the editors of Gale on Easements, Twenty-Second Edition, at 1-72:

“The question of whether the right granted or claimed by prescription is too extensive to be an easement has been considered in a large number of decided cases. Unfortunately, the law is not clear and precise as to the boundary between a right which can be an easement and a right which is too invasive of the rights of the owner of the land to be an easement.”

The ouster principle has often been engaged in cases involving claims to easements of parking or storage; where the relevant use has involved something being brought on to the servient land and located there. As Mr Ball pointed out, in his submissions, it is in cases of this kind that one is most likely to find that the exercise of the right involves the effective exclusion of the owner and others from the servient land. This falls to be contrasted with the exercise of a right such as a right of way, where the exercise of the right of way should not normally result in the effective exclusion of the owner or other users from the servient land.

In Attorney General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 the Judicial Committee of the Privy Council expressed the opinion that a right to store goods on the land of another could be created as an easement. The judgment of the Committee was delivered by Lord Shaw. In the course of the judgment, at page 617 of the report, Lord Shaw rejected the argument of the Crown that an easement of storage was unknown to the law:

“Their Lordships see no reason why upon the first point a right of easement should be exclusive of the storage claim. The law must adapt itself to the conditions of modern society and trade, and there is nothing in the purposes for which the easement is' claimed inconsistent in principle with a right of easement as such. This principle is of general application, and was so treated in the House of Lords in Dyce v. Hay (1) by Lord St. Leonards L.C., who observed : " The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind."”

This recognition of the ability to create an easement of storage was repeated in Wright v Macadam. The case was concerned with the use of a shed in the garden of a property. With the permission of the defendant landlord, the first plaintiff, as tenant of the top floor flat in the property, had used the shed for the storage of coal. The defendant granted a new tenancy of the flat to the first plaintiff and her daughter, the second plaintiff. When the defendant sought to charge the plaintiffs for the use of the shed, they claimed that their tenancy included a right to use the shed for the storage of coal.

The question before the Court of Appeal in Wright v Macadam was whether a formal right to use the shed for the storage of coal had passed to the plaintiffs, on the renewal of the tenancy, by virtue of the operation of Section 62 of the Law of Property Act 1925. The principal judgment in the Court of Appeal was given by Jenkins LJ, with which Singleton LJ agreed. Tucker LJ delivered a short concurring judgment. One of the matters dealt with by Jenkins LJ in his judgment was whether a right or easement of the kind claimed, that is to say an easement of storage, was one which could be included in a lease or conveyance. Jenkins LJ saw no difficulty in this respect. As he stated, at page 752 of the report:

“Next, the right was, as I understand it, a right to use the coal shed in question for the purpose of storing such coal as might be required for the domestic purposes of the flat. In my judgment that is a right or easement which the law will clearly recognize, and it is a right or easement of a kind which could readily be included in a lease or conveyance by the insertion of appropriate words in the parcels. This, therefore, is not a case in which a title to a right unknown to the law is claimed by virtue of s. 62.”

The ouster principle does not appear to have been raised in Wright v Macadam. Nor does it appear to have been in dispute that an easement of storage could be created. So far as I can see, the argument for the defendant landlord in this context was that the right which was claimed was too uncertain, as opposed to a right which left the defendant without any reasonable use of the shed or such part of the shed as had been used for the storage of coal by the first plaintiff. Jenkins LJ rejected the argument based on uncertainty, in the following terms, at page 753 of the report:

“Mr. Borders for the defendant sought to rely on the fact that there was no precise evidence as to the mode in which the right was to be enjoyed. The particular point he took was that there was no evidence as to the means of access by which the tenants were to go to and from the coal shed when they had occasion to put coal in or take coal out. In my judgment that has no effect on the conclusion. Mr. Macadam admitted in his evidence that he gave permission for the coal shed to be used, and he admitted that it was still being used in fact on August 28, 1943. In my judgment the right must be regarded as carrying with it the necessary means of access, and it must be assumed that at all times down to August 28, 1943, Mrs. Wright enjoyed the use of the coal shed together with the necessary access to it and from it.”

As Mr Ball pointed out, the report of Wright v Macadam does not provide any particulars of the way in which the first plaintiff had made use of the shed for the storage of coal. As I have said, it does not appear to have been argued, for the defendant, that the defendant was left without any reasonable use of the shed or such part of the shed as had been used for the storage of coal.

I can now move to a case where the ouster principle was fully engaged. In Copeland v Greenhalf the plaintiff was the owner of an orchard and adjoining house. Access to the orchard was obtained by a strip of land, also owned by the plaintiff, which was about 150 feet long, and of varying width. The defendant was a wheelwright, whose premises were opposite to the strip of land. The plaintiff sought to restrain the defendant from placing and leaving vehicles on the strip. The defendant claimed a right, on the basis of prescription, to store customers’ vehicles, awaiting or undergoing repair, along the strip, leaving only a space for access to be obtained to the orchard.

As Mr Petts stressed to me, the rights asserted by the defendant to have been acquired in Copeland v Greenhalf were very extensive. The relevant pleading of the defendant’s case was in the following terms:

“For a long time namely for 50 years and upwards before this action the defendant and his predecessors in title to the said house and workshop have by virtue of a deed of grant made unto them by the predecessors in title of the plaintiff who were then seised in fee simple of the plaintiff's said strip for the estate the plaintiff now has (but which deed has since been lost or destroyed by accident) enjoyed the right to place deposit and store and if necessary repair upon the plaintiff's said strip along the south-east side thereof alongside the wall or fence there and so as not to extend beyond a distance of 8 ft. 6 ins. inwards from such fence or wall or obstruct or interfere with access for all purposes from and to Barebones orchard to and from North Street carts carriages and other wheeled vehicles of wooden or partly wooden construction cartwheels and farm implements at all times for the more convenient use and occupation of the defendant's said house and workshop.”

In his judgment Upjohn J recorded the relevant submission of the plaintiff’s counsel in the following terms, at page 497 of the report:

“He contended that there is nothing novel in the business of a wheelwright, but that it is an entirely novel suggestion that a wheelwright or anyone else carrying on trade can have such a right as this. He pointed out the great width of the right claimed: vehicles can be left there for an indefinite time, for years, if necessary; they can be left in a vague and undefined part of the strip, leaving an ill-defined gangway, as it has been called, for the owner of the strip to use in getting to his land. He further pointed out that the defendant is really doing much more than an ordinary wheelwright's business; that he is doing repairs to every form of modern type of vehicle, such as motor lorries, and that that also makes the claim really too uncertain to be enforceable.”

Although this argument was framed as an argument based on uncertainty, it can be seen that it engaged the ouster principle, in the sense that the right claimed was said to be too wide. In accepting this argument Upjohn J made it quite clear, at page 498 of the report, that he considered the right claimed to constitute what was virtually a claim to possession of the servient land, if necessary to the exclusion of the owner or, at any rate, to joint user:

“I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement. It seems to me that to succeed, this claim must amount to a successful claim of possession by reason of long adverse possession. I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription.”

Upjohn J thus concluded that the right claimed was not known to the law, and granted the injunction sought by the plaintiff.

A similar result was reached in the later case of Batchelor v Marlow. In this case the defendants operated a business of servicing and repairing cars at garage premises. The defendants had parked cars on a strip of land in connection with their business. The strip of land was L-shaped and comprised what was effectively an area of verge to a dirt road over which there was a public right of way. The public right of way did not extend to the strip itself. It was common ground that there was space to park up to six cars on the strip. The defendants claimed a right to park cars on the strip, for the purposes of their business, on the basis of prescription. The plaintiff was the owner of the strip and commenced proceedings challenging the defendants’ right to make use of the strip for parking cars. At first instance Nicholas Warren QC (as he then was), sitting as a Deputy Judge of the High Court, found for the defendants and declared that the defendants had acquired an exclusive prescriptive right to park up to six cars on the strip, on Mondays to Fridays between the hours of 8.30am and 6.00pm.

This result was overturned in the Court of Appeal. In his judgment, with which Kay and Henry LJJ agreed, Tuckey LJ made reference, at [8] and [9], to the test for the application of the ouster principle, as formulated by Judge Paul Baker in the London & Blenheim Estates case:

“8.

Earlier in his judgment he referred to the authorities and accepted that the question he had to answer was one of degree. This followed the approach adopted by Judge Paul Baker QC in Blenheim Estates v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 who, after reviewing the earlier authorities on car parking, said at page 1288:

The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant."

9.

It was common ground before us that that was the essential question in this case and that there was no authority which provided the answer to it.”

Tuckey LJ went on to refer to Gale on Easements (then in its seventeenth edition), Dyce v Hay, and Copeland v Greenhalf. In relation to Copeland v Greenhalf Tuckey LJ said this, at [12] and [13]:

“12.

That case [Dyce v Hay] was referred to by Upjohn J in the well−known case of Copeland v Greenhalf (1952) 1 Ch. 488 about which considerable argument was addressed to us. Miss Williamson relied on it because she said the facts were similar to those in our case and the judge had held that the rights asserted were not capable of being easements because they would deprive the servient owner of any reasonable use of his land. Mr West, for the respondents, said that the facts were not similar and the judge only decided that the rights asserted were too uncertain to amount to an easement.

13.

In view of the fact that the parties are agreed what the right question is and that the answer to it depends upon the facts of each case, I see no need to grapple with these arguments, other than to say that I think it is clear from his judgment that Upjohn J rejected the claim because the rights asserted were both uncertain and too extravagant.”

Following his review of the authorities Tuckey LJ returned to the question to be answered, and summarised the competing arguments of the parties, at [15] and [16]:

“15.

After that short diversion I return to the question which has to be answered in this case. Does an exclusive right to park six cars for nine−and−a−half hours every day of the working week leave the appellant without any reasonable use of his land, whether for parking or anything else?

16.

Miss Williamson emphasises the fact that the right asserted is exclusive of all others, including the appellant. Car parking over the whole of the land is highly intrusive because no other use can be made of it when cars are parked on it. In practice it prevents the appellant from making any use of his land and makes his ownership of it illusory. Not so, says Mr West. Mathematically the respondents only have use of the land for 47−and−a−half hours per week, whereas the appellant has 120−and−a−half hours. He suggests various uses which the appellant could make of the land. He could sell it to the respondents or charge them for using it outside business hours, if that is what they wanted. Outside those hours he could park on the land himself or charge others for doing so. He would be able to concrete over the surface of the land without interfering with the right.”

Tuckey LJ then came to his answer to the question, at [17] and [18] (the underlining is my own):

“17.

I think these suggestions demonstrate the difficulties which Mr West faces. Sale to the respondents would amount to a recognition that the rights they asserted had given them in practice a beneficial interest and no doubt the price would reflect this fact. The appellant could of course park himself at night or the weekends but the commercial scope for getting others to pay for doing so must be very limited indeed. I cannot see how the appellant would benefit from concreting over the land, although this would certainly enhance the respondents' right.

18.

If one asks the simple question: "Would the appellant have any reasonable use of the land for parking?" the answer, I think, must be "No". He has no use at all during the whole of the time that parking space is likely to be needed. But if one asks the question whether the appellant has any reasonable use of the land for any other purpose, the answer is even clearer. His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.”

Tuckey LJ thus concluded, at [19], that the right claimed by the defendants was too extensive to qualify as an easement:

“19.

I therefore accept Miss Williamson's submissions on this aspect of the case. It follows that I do not think the right found to exist by the judge was capable of being an easement. In reaching this conclusion I am of course differing from the judge to whom I should pay tribute for his detailed and clear judgment in which he resolved a number of issues which are not the subject of this appeal. On the issue with which we are concerned, however, it does not seem to me from the passage which I have cited from his judgment that the judge fully realised the implications of his finding upon the appellant's right to make use of his own land. For these reasons I would allow this appeal.”

Both the ouster principle and the decision of the Court of Appeal in Batchelor v Marlow were subjected to criticism by the House of Lords in the Scottish case of Moncrieff v Jamieson [2007] UKHL 42 [2007] 1 WLR 2620, which was concerned with the question of whether a right, in form of a servitude of parking could exist ancillary to a servitude right of vehicular access and, if so, the extent of that right.

A full analysis of Moncrieff v Jamieson is beyond the scope of this decision, and is not required. In terms of the criticism of the ouster principle and Batchelor v Marlow, it is convenient to refer to the speech of Lord Scott. Following a review of the authorities, including Wright v Macadam, Copeland v Greenhalf, London & Blenheim Estates and Batchelor v Marlow, Lord Scott summarised his criticisms in the following terms, at [59]:

“59

In my respectful opinion the test formulated in the London & Blenheim Estates case [1992] 1 WLR 1278 and applied by the Court of Appeal in Batchelor v Marlow[2003] 1WLR764, a test that would reject the claim to an easement if its exercise would leave the servient owner with no “reasonable use” to which he could put the servient land, needs some qualification. It is impossible to assert that there would be no use that could be made by an owner of land over which he had granted parking rights. He could, for example, build above or under the parking area. He could place advertising hoardings on the walls. Other possible uses can be conjured up. And by what yardstick is it to be decided whether the residual uses of the servient land available to its owner are “reasonable” or sufficient to save his ownership from being “illusory”? It is not the uncertainty of the test that, in my opinion, is the main problem. It is the test itself. I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes. The claim in Batchelor v Marlow for an easement to park cars was a prescriptive claim based on over 20 years of that use of the strip of land. There is no difference between the characteristics of an easement that can be acquired by grant and the characteristics of an easement that can be acquired by prescription. If an easement can be created by grant it can be acquired by prescription and I can think of no reason why, if an area of land can accommodate nine cars, the owner of the land should not grant an easement to park nine cars on the land. The servient owner would remain the owner of the land and in possession and control of it. The dominant owner would have the right to station up to nine cars there and, of course, to have access to his nine cars. How could it be said that the law would recognise an easement allowing the dominant owner to park five cars or six or seven or eight but not nine? I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.”

Lord Neuberger expressed his support for these views in his own speech, but in qualified terms, at [143]:

“143

Accordingly, I see considerable force in the views expressed by Lord Scott in paras 57 and 59 of his opinion, to the effect that a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive occupation, on the basis that the essential requirement is that the servient owner retains possession and control. If that were the right test, then it seems likely that Batchelor v Marlow [2003] 1 WLR 764 was wrongly decided. However, unless it is necessary to decide the point to dispose of this appeal, I consider that it would be dangerous to try and identify degree of ouster is required to disqualify a right from constituting a servitude or easement, given the very limited argument your Lordships have received on the topic.”

It was accepted before the FTT, and it was accepted before me that Moncrieff v Jamieson had not overruled Batchelor v Marlow. This accords with my own reading of Moncrieff v Jamieson. I do not read the decision as overruling either Batchelor v Marlow or the ouster principle, as it is referred to in the case law. Equally, I do not read Moncrieff v Jamieson as altering or qualifying the question to be asked in the application of the ouster principle, as formulated by Judge Paul Baker in London & Blenheim Estates. It seems to me that the current position was correctly identified by Judge Purle QC, sitting as a Judge of the High Court, in Virdi v Chana [2008] EWHC 2901 (Ch), at [15] and [16]:

“15.

I now turn to consider the ouster issue (to which the remaining grounds of appeal relate). It has long been recognised that an easement cannot be claimed if its effect is to deprive the servient owner of the benefits of ownership. This principle was applied to car parking spaces by the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764. On the facts of that case, the Court of Appeal held that the claimed parking easement did not exist in law as the owner of the servient land would be left without any reasonable use of the land, thus rendering that ownership "illusory".

16.

Despite powerful criticisms of that decision by the House of Lords in Moncrieff v Jamieson [2007] 1 WLR 2620, it was not overruled and remains binding on me. I must therefore apply it to the present case, unless it is distinguishable.”

In summary therefore, the question which the FTT had to ask itself in this case was the question formulated by Judge Paul Baker in London & Blenheim Estates, which was adopted and applied in Batchelor v Marlow. For ease of reference I repeat Judge Paul Baker’s formulation of the question:

“The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant.”

The above summary of the relevant law is not exhaustive, in terms of the cases cited to me. It is not however necessary to go through all of the cases. I should however mention that the legal materials cited to me include the analysis of the ouster principle by the editors of Gale on Easements (Twenty-Second Edition), at 1-72 to 1-85, from which I have quoted above. This analysis includes a most helpful review of the case law and, in particular, the editors’ views on the implications of Moncrieff v Jamieson. The legal materials also included an extract from the Law Commission Report: Making Land Work: Easements, Covenants and Profits A Prendre (Law Com No. 327), in which the Law Commission recommended the abolition of the ouster principle and the statutory reversal of Batchelor v Marlow. I found the extract from the Law Commission Report helpful, in the sense that it contained an illuminating analysis of the development of the ouster principle.

Whether and, if so, to what extent any of the cases cited to me by the parties are, on their facts, of assistance in answering the question engaged by the ouster principle in the present case is a matter which is best left to my analysis of the arguments in the Appeal.