Prescription – Lost modern grant – Rights of parking and storage of vehicles – Whether capable of subsisting as easements – Whether prescriptive claim may be based on periods of use without planning permission – Extent to which right of access to building affected by change of use to which building put
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 (the garage) which abutted the made up road at a point immediately to the north of the junction. The defendants also owned 71 Albert Road, a former mission hall, 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 length of strip (the pink land) which ran along the front of no 71 (the frontage section) and continued for a further few yards to the east (the eastern section).
Starting in 1970, the defendants followed the practice of: (a) parking up to six roadworthy vehicles on the frontage section, mainly during business hours; (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 which 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. It was further contended that the defendants were making excessive use of the frontage section as a means of access to no 71 (the access issue).
Held: The defendants were entitled to limited parking and access rights.
1. A right to park (roadworthy) vehicles anywhere in a defined area was clearly capable of subsisting as an easement provided that it was not exercisable to the extent of leaving the servient owner without any reasonable use of his land, whether for parking or anything else. The question was one of degree: see London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 Handel v St Stephens Close [1994] 1 EGLR 70, Hair v Gillman unreported, 17 February 2000. On the evidence before the court, the claimants use of the frontage section for the benefit of the garage was capable of subsisting as an easement and had been exercised for the requisite number of years.
2. Nor was it any objection that the pink land had been so used without the requisite planning permission. The rule that a prescriptive claim could not rely on periods of illegal user was limited to instances where the use contravened the terms of a statute. In the case of the Town and Country Planning Act 1990 no contravention as such could take place unless and until an enforcement notice was served: Neaverson v Peterborough RDC [1902] 1 Ch 557, Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14 distinguished. No such notice had been served during the period (1970-1990) relied on by the defendants.
3. The right claimed over the eastern section amounted to a right of storage which, though capable of subsisting as an easement in some circumstances, could not do so in the present case as it amounted to an effective exclusion of the claimant from the alleged servient tenement: Wright v Macadam [1949] 2 KB 744, Copeland v Greenhalf [1952] Ch 488, Grigsby v Melville [1972] 1 WLR 1355, considered.
4. The claimant succeeded on the access issue. Although the alleged right was not affected by the change of use of no 71, the earlier use had to be taken into account when determining the level of permissible enjoyment: see Gale on Easements (16th ed) paras 9-08 – 9-13, 9-40 and Mills v Silver [1991] Ch 271. The defendants had failed to prescribe for the substantial additional burden placed on the pink land since 1994.
Bridget Williamson (instructed by Penningtons, of Newbury) appeared for the claimant; Mark West (instructed by WH Matthews, of Kingston) appeared for the defendants.
Alan Cooklin, barrister
