Defendants parking and storing vehicles on claimant’s land – Whether defendants’ right to park cars capable of subsisting as easement – Whether such use leaving claimant without reasonable use of land – Judge finding right amounting to easement – Appeal allowed
Land owned by the claimant in Sutton, Surrey, included a short unmade-up road, Albert Road, which at its western end formed a junction with a made-up road. A track running eastwards along the centre of Albert Road was classified as a public highway. The public had no right to use the strips of land on either side of the track. The defendants operated a car-repair business from premises that abutted the made-up road at a point immediately to the north of the junction (the garage). Next to the garage was 71 Albert Road, which stood on the south side of the road close to the junction, and which possessed a small forecourt. The dispute concerned the defendants’ use of a strip (the pink land) that ran along the front of no 71 and continued for a further few yards to the east.
Starting in 1970, the defendants followed the practice of: (a) parking up to six roadworthy vehicles on the frontage section, mainly during business hours; and (b) leaving up to two unroadworthy vehicles on the eastern section until such time as they were collected for renovation or breaking up.
In 1990 the defendants lodged a caution against first registration of the pink land, claiming to have become prescriptively entitled to parking rights. At that time no 71 belonged to a religious trust and was used for divine worship that largely took place at weekends. In 1994 the defendants acquired no 71 and created space for several more vehicles by removing all barriers between the forecourt and the pink land.
In or about 1999 the claimant, having acquired Albert Road with a view to development, took proceedings to vacate the caution. The claimant contended, inter alia, that the rights claimed by the defendants were too extensive to be capable of subsisting as easements. The judge held that on the evidence before the court, the defendants’ use of the pink land for the benefit of the garage was capable of subsisting as an easement which had been exercised for the requisite number of years. The judge concluded that, accordingly, the defendants had a prescriptive easement to park six cars on the pink land between 8.30am and 6pm, Monday to Friday. The claimant appealed.
Held: The appeal was allowed.
The question was whether the defendants’ right to park six cars between 8.30am and 6pm, Monday to Friday, left the claimant without a reasonable use of the land. Although the claimant could park on the land at night and at the weekend, the commercial scope for making others pay for parking or for other uses was extremely limited. The judge had not fully realised the implications of his finding on the claimant. The claimant’s use was curtailed altogether for a certain period of the week and therefore his ownership was illusory. The claimant did not have reasonable use of the land and, accordingly, the right found by the judge was not capable of being an easement.
Bridget Williamson (instructed by Harris-Evans & Co, of Southampton) appeared for the claimant; Mark West (instructed by WH Matthews & Co, of Kingston upon Thames) appeared for the defendants.
Thomas Elliott, barrister
