Neutral Citation Number: [2014] EWHC 1180 (Ch) IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION Case No: HC13D00257 Royal Courts of Justice Rolls Building, London, EC4A 1NL Date: 23/04/2014 Before : MISS A TIPPLES QC (Sitting as a Deputy Judge of the Chancery Division) – – – – – – – – – – – – – – – – – – – – – Between :
(1) JAMES MARTIN TIMOTHY BEGLEY (2) HELEN CLAIRE BEGLEY (3) KENNETH JOHN MANDER (4) JUDITH MANDER | Claimants |
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(1) CAROLYN TAYLOR (2) TREVOR TAYLOR | Defendants |
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Miss Tamsin Cox (instructed by Coyle White Devine) for the Claimants
Mr Kavan Gunaratna (instructed by Pittmans LLP) for the Defendants
Hearing dates: 11, 12, 13 and 14 March 2014
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
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Miss A Tipples QC:
Introduction
1. The Claimants and the Defendants are neighbours who live in a cul-de-sac in Gerrards Cross, Buckinghamshire. The dispute between them concerns the rights of way and rights to park on the private road providing access from Fulmer Road, a busy public highway, to each of their properties on the cul-de-sac. I shall refer to the private road as the Access Road.
2. The First and Second Claimants, James and Helen Begley, own Perama, 94 Fulmer Road (No. 94) which is registered at HM Land Registry under title number BM45134. They purchased No. 94 from John and Caroline Strafford in September 2006 and were registered as proprietors on 30 October 2006. No. 94 is on the northern side of the cul-de-sac (or on the right if you look down the Access Road from Fulmer Road), so that the entire southern boundary of No. 94 adjoins the Access Road.
3. The Third and Fourth Claimants, Kenneth and Judith Mander, own Oak Lodge, 98 Fulmer Road ( 98) which is registered at HM Land Registry under title number BM45160. Mr and Mrs Mander moved into No. 98 in December 2001 as the tenants of Sergio and Rachel Tansini. In May 2003 they purchased No. 98 from Mr and Mrs Tansini and were registered as proprietors on 16 June 2003. The Tansinis had purchased No. 98 from Peter and Joyce James in June 1992. No. 98 is on the southern side of the cul-de-sac (or on the left if you look down the Access Road from Fulmer Road), so that the entire northern boundary of No. 98 adjoins the Access Road.
4. The Defendants, Carolyn and Trevor Taylor, own No. 96 Fulmer Road (No. 96) and the Access Road which are registered at HM Land Registry under title number BM45161. They purchased No. 96 and the Access Road from Anthony and Jennifer Potter in June 2007 and Mrs Taylor was registered as the proprietor on 4 September 2007. The Potters had purchased No. 96 and the Access Road from Patrick and Anne James in June 1992. No. 96 is at the very western end of the Access Road and the end of the Access Road, being approximately 8 metres wide, adjoins the eastern boundary of No. 96.
The lay-out of the cul-de-sac
5. Nos. 94, 96 and 98 Fulmer Road are the only properties in the cul-de-sac. 6. In 1970 Waltham Cross Construction (Holdings) Limited (the Developer) obtained, on appeal, planning permission to build three dwelling houses and adjacent garages on about an acre of land as a self-contained community with its own separate means of vehicular and pedestrian access from Fulmer Road. The permission was granted subject to the condition that provision shall be made within the site for the turning round of vehicles, as may be agreed with the local planning authority . This was, it appears, the result of an objection that it was most undesirable to allow a development from which vehicles might reverse out onto Fulmer Road, as there had recently been a fatal accident on Fulmer Road.
7. The properties were all developed and built before February 1973. Each property had a front and back garden and, at the side, a double garage attached to the house facing onto the Access Road. There was a rear entrance to each house adjacent to the garage providing access to the house from the Access Road. The entrance to the front door of each house was through the front garden.
8. As constructed, there were only two substantive differences between the properties. First, the front of No. 96 faced north, whereas the front of Nos. 94 and 98 faced east. Second, the back door and entrance to the garage of No. 98 was set back from the Access Road. Whereas in the case of Nos. 94 and 96 the entrance to the back door and the garage door directly adjoined the Access Road. This meant that there was a narrow strip of land forming part of the title No. 98 located between, on the one hand, the Access Road and, on the other, the northern edge of the house, the garage door and the back entrance. Mr Gunaratna, Counsel for the Defendants, has referred to this narrow strip of land as the Lay-by. It is his clients case that two cars can be parked within the Lay-by. However, this strip of land is not actually a lay-by in the sense that most people would understand that term. Nevertheless, I shall use that term in this judgment as that was the description used by the parties during the hearing.
9. Nos. 94 and 98 remain in the same format in which they were built. However, what was originally the recessed back door, is now used as the main entrance to each house. Further, the garage to No. 94 is no longer used as a garage. The Begleys use it for storage, although if the items stored are removed it can be used as a garage again.
10. As to No. 96, since 2007 the house and garage have been substantially altered by the Taylors. The garage has been removed and the area which was once a garage has been converted into part of the Taylors house. The front door of No. 96 is now on the eastern side of the house and faces directly toward Fulmer Road. Windows have also been added to the eastern side of the house, where there were none before.
11. In relation to the Access Road itself, there are a number of important features:
i) The only means of vehicular access to the garages of Nos. 94 and 98 to and from Fulmer Road is over the Access Road. Likewise the only pedestrian access to Nos. 94 and 98 is over the Access Road.
ii) The only pedestrian and vehicular access to No. 96 is also over the Access Road.
iii) The narrowest section of the Access Road is between Fulmer Road and the entrance to the garages to Nos. 94 and 98.
iv) The entrance to the garage of No. 94 and the entrance to the garage of No. 98 are directly opposite each other. However, the entrance to No. 98 garage is, as explained at paragraph 8 above, set back from the Access Road.
v) Immediately to the west of the house and garage at No. 94 there is a side gate providing pedestrian access from the Access Road to the back garden of No. 94. Likewise, on the opposite side of the Access Road, there is a gate immediately to the west of No. 98 providing pedestrian access from the Access Road to the back garden of No. 98.
vi) There is a grass verge on the northern side of the Access Road between the end of the Access Road at No. 96 and the garden gate of No. 94 or thereabouts (the Verge). The grass verge is part of the title to No. 94 and was put down by Mr Strafford in the 1970s. The verge is about 1.2 metres wide and, on the north side of it, there is a dense line of trees which encloses the garden to No. 94.
vii) There is a footpath on the southern side of the Access Road between the end of Access Road at No. 96 and the garden gate of No. 98 (the Footpath). In his opening remarks, I understood from the Defendants Counsel that the Footpath was in the ownership of Mr and Mrs Mander, although he was keen to emphasise that this case was not a boundary dispute, and I was not being asked to determine the precise location of any boundaries. The footpath is about 1.2 metres wide and, on the south side of the footpath, there is then a wooden or close-boarded fence which encloses the garden to No 98 (the Fence).
viii) The western section of the Access Road between No. 96 and the garden gates of Nos. 94 and 98 is about 8 metres wide. Further, this western section of the Access Road is about half the length of the whole Access Road.
ix) At the junction between the Access Road and Fulmer Road, there are visibility splays on each side of the road and Mr Gunaratna has described this as a bell mouth.
x) There are no parking spaces marked out on the Access Road.
xi) The distances and measurements I have mentioned above are all approximate and have been taken from the evidence that I heard. I was not provided with any accurate measurements as the parties are agreed that such measurements were not required to determine the issues in dispute.
12. I did not undertake a site visit. The Claimants applied for a site visit on the first day of the hearing, which was opposed by the Defendants. I explained to the parties that I did not think a site visit was necessary in the light of the plans and photographs I had been provided with, but I would keep the matter open for review during the course of the hearing. On the third day of the hearing Miss Cox, Counsel for the Claimants, confirmed (in response to a question from me) that her clients no longer thought a site visit was necessary.
The issue of proceedings
13. There is no dispute that the Claimants have rights of way across the Access Road. However, there is some dispute about the source of those rights of way, and the extent of them which I deal with below.
14. In 2011 Mrs Taylor raised with the Claimants that she and her husband would like to put gates at the entrance to the Access Road. The Claimants objected to this proposal. Nevertheless, the Manders suggested that all three sets of neighbours should discuss this matter. No discussion took place. Rather, about a year later Mr and Mrs Mander received a letter dated 18 June 2012 from Mr and Mrs Taylors solicitors. This letter said that the Access Road needed repairing and reminded the Manders of their obligation to contribute to the costs of this. The letter also informed the Manders that the Taylors were intending to erect a gate halfway down the Access Road. The letter said this:
Given the recent spate of thefts from gardens in the area our clients are also keen to erect a gate to restrict access by the general public. Our clients are currently obtaining a cost estimate and hope to start work shortly. We understand that you do not wish the gate to be erected at the end of the communal driveway [the Access Road] and our clients therefore suggest that the gate is erected halfway down the communal driveway so that access is not affected. We trust you will have no objections.
15. The Manders responded the next day explaining that this proposal was unacceptable. They also repeated their suggestion that there should be a discussion between the three sets of neighbours. The Taylors solicitors wrote to the Begleys at the same time. The Begleys responded on 21 June 2012 agreeing with everything the Manders had said and on 6 July 2012 their solicitors responded stating that the proposed gate was an interference with the Begleys proprietary rights.
16. There was no further correspondence from the Taylors or their solicitors until the Manders and the Begleys each received a letter from the Taylors solicitors dated 10 September 2012. They were informed that the Taylors had appointed a surveyor to inspect the driveway (which had taken place on 24 July 2012, and the report enclosed was dated 16 August 2012) and had instructed a contractor to commence work on the Access Road the following week. They were also told they had to keep the Access Road clear at all times. The Manders responded the next day pointing out that they would not being making any contribution to works they had not agreed to and repeated their offer of discussion between the three sets of neighbours.
17. On 17 September 2012 the Taylors began digging up the western section of the Access Road and, on 28 September 2012, they arranged for three gate posts to be concreted into the Access Road. The gate posts are located:
i) in the western, and widest, section of the Access Road;
ii) about two-thirds of the way along the Access Road from the junction with Fulmer Road;
iii) about one-third of the way along the Access Road from the front door of No. 96; and
iv) about 8 metres to the west of the back doors (but now main entrances) and garages of Nos. 94 and 98.
At or about the same time the Taylors erected green barrier fencing next to the gate posts and across the Access Road. This meant that the western part of the Access Road beyond the gate posts was completely blocked off to any vehicles. The fencing remained in place until very shortly before the trial of this case. It emerged during Mr Taylors evidence that a fourth gate-post is yet to be inserted, but when that happens the entrance through the gates will be just about 4.20 metres wide, and permanent fence panels will bolted to the gate posts either side of the entrance (each having a width of 1.9m or thereabouts). As to the type of gates to be hung on the gate-posts this is, and remains, unclear.
18. The Claimants protested that this was an interference with their rights of way. The Taylors agreed to postpone the works to the Access Road, whilst the parties tried to find an agreed solution. No such solution was found and this claim was issued in the High Court on 21 January 2013.
19. The Claimants seek a declaration in relation to their rights of way, a mandatory injunction to remove the obstruction on the Access Road and an injunction to restrain the Taylors from obstructing the Access Road or interfering with their use of it. The Taylors have counterclaimed for a declaration that the Claimants are not entitled to park on the Access Road, for an injunction to prevent them doing so and for a declaration that the proposed gate will not unlawfully interfere with their rights of way. A Reply and Defence to Counterclaim was served by the Claimants. They maintain that the practice of parking vehicles on the Access Road has been carried on by the owners of Numbers 94 and 98, and by their invitees, since at least 1973 as of right and without interruption and the right to park is claimed under section 2 of the Prescription Act 1832, alternatively by the doctrine of lost modern grant or at common law. However, the Claimants have not claimed any declaration that they can park on the Access Road, or how many vehicles they are entitled to park on the Access Road (although the plan attached to the witness statements of Mrs Mander and Mr Begley identified a parking strip with room to park up to three cars). Nevertheless, Mr Gunaratna, Counsel for the Defendants, did not take any point on this and said that, if the rights to park were made out, then it would be helpful for the Court to identify where the Claimants are entitled to park on the Access Road.
The issues
20. There are three main issues I have to decide:
(1) Do the Claimants, as the owners of Nos. 94 and 98, have a right of way with or without vehicles over the entirety of the Access Road or is this right of way limited to part of the Access Road?
(2) Is the gate that the Taylors have started building on the Access Road a substantial inference with the Claimantsright of way?
(3) What rights if any do the Claimants have to park on the Access Road?
(1) Exten t of th e Claiman ts righ t of w ay over th e Access Road
21. The first issue turns on the construction of the relevant conveyance made in 1973 between the Developer and the first owner of the property.
(a) No. 98 (the Manders)
22. The registered title to No. 96 records that the land has the benefit of the rights granted by but is subject to the rights reserved by the transfer dated 23 February 1973 referred to in the charges register. On 23 February 1973 the Developer conveyed No. 96 (referred to as Plot C) and the Access Road to Patrick and Anne James excepting and reserving the easements and rights set out in the Second Schedule hereto. Paragraph 3 of the Second Schedule then provides:
A right of way at all times and for all purposes with or without vehicles over the land coloured blue in favour of the properties marked A [No. 94] and C [No. 98] on the said plan.
The land coloured blue on the plan is the whole of the Access Road.
23. The registered title to No. 98 records that the land has the benefit of the rights granted by but is subject to the rights reserved by the transfer dated 23 February 1973 referred to in the charges register. On 23 February 1973 the Developer conveyed No. 98 (referred to as Plot C) to Peter and Joyce James together with easements and rights set out in the First Schedule heretoaragraph 1 of the First Schedule then provides:
The right for the Transferee and his successors in title and all other persons authorised by him or them (in common with the Transferors and others) at all times and for all purposes to pass and repass with or without vehicles over and along the accessway leading from Fulmer Road.
24. The accessway leading from Fulmer Road is plainly the Access Road, which is the servient tenement. There is nothing in the grant of that easement to pass and repass which limits that right to any particular part of the Access Road or to being merely a way between two points. Mr Gunaratna recognised in his skeleton argument that it was open to the court to find that the clause conferred rights of way that extended over the whole of the Access Road. He did not direct me to any part of the conveyance which could support a more limited construction. In my view, it is quite clear that this conveyance grants the owners of No. 98, as the dominant tenement, a right at all times and for all purposes to pass and repass with or without vehicles over and along the entirety of the Access Road, being the servient tenement.
(b) No. 94 (the Begleys)
25. The registered title to No. 94 records that the land has the benefit of the rights granted by but is subject to the rights reserved by the transfer dated 12 February 1973 referred to in the charges register. On 12 February 1973 the Developer conveyed No. 94 (referred to as Plot A) to John and Caroline Strafford together with easements and rights set out in the First Schedule hereto Paragraph 1 of the First Schedule then provides:
The right for the Transferee and his successors in title and all other persons authorised by him or them (in common with the Transferors and others) at all times and for all purposes to pass and repass with or without vehicles over and along the said estate roads.
26. The expression estate roads is not defined in the conveyance. However, paragraph 5(c) of the conveyance provides that:
the expressions the Estateand the said Estate mean the Transferor at Fulmer Road Gerrards Cross Buckinghamshire being all the land included in Title Number BM24641 on 1st June 1968 the extent of which is shown edged with a heavy black line on the plan annexed hereto but excluding the electricity substation within that edging.
27. Title Number BM24641 was the larger area of land bought by the Developer and, in addition to the land used for developing the cul-de-sac, included all the land to the west and north which was developed into St Huberts Close. The plan annexed to the conveyance shows that the land edged with a heavy black line was the boundary of Plots A, B and C (now Nos. 94, 96 and 98) and that the Access Road was outside the heavy black line. There is no electricity substation shown within the edging, and the plan does not show where the substation is, or is intended to be, located.
28. Miss Cox submitted that the state roads must be the Access Road as that is the only road that serves the estate, it is the only road that the owners of the dominant tenement could grant a right of way over and, in the context of the lay out of the three properties at Nos. 94, 96, and 98, that is the only sensible interpretation of the conveyance. In response to this, Mr Gunaratna pointed to the use of the word roadsather than road, the much larger area of land purchased by the Developer and the fact that the letter e estate roads was not capitalised, as in the defined terms in Clause 5(c) of the conveyance. However, he recognised the considerable difficulty he faced in arguing that state roads did not mean the Access Road when in February
1973 the only means of access to the garage of No. 94 from the highway was over the Access Road.
29. I agree with Miss Cox submissions and am satisfied that that the reference to estate roads in the 1973 Conveyance for No. 94 is, and can only be, to the Access Road. It is plain from this conveyance that the owners of No. 96 intended to grant the owners of No. 94 a right of way over land that they owned so that the owners of No. 94 could access their property from Fulmer Road on foot and with vehicles. The only land over which the owners of No. 96 could have intended to grant such a right of way is the Access Road. There are no other options. I am also satisfied that, as with No. 98, that right of way for the benefit of No. 94 is over the entirety of the Access Road. This is for the same reasons that I have set out in relation to the 1973 Conveyance of No. 98 at paragraph 24 above. This is also consistent with the terms of the 1973 conveyance relating to No. 96 and the easements which were excepted from the conveyance to Mr and Mrs Patrick James.
30. However, if I am wrong about this, then the Begleys maintain that No. 98 has the benefit of a right of way for all purposes over the entirety of the Access Road on a number of different bases, the most important of which is prescription. I am satisfied that if my construction of this conveyance is incorrect then, based on my findings of fact set out below, the Begleys (and their predecessors in title) have since 1973 used the western part of the Access Road beyond the proposed gate to turn cars (and have done so where there has been room to do so, rather than in any specified place) and have walked to the very end of the Access Road in order to tend and maintain the Verge. They have therefore acquired a right of way for all purposes to pass and repass over the whole of the Access Road by reason of prescription, whether under the Prescription Act 1832 or the doctrine of lost modern grant.
(c) Other points
31. Notwithstanding the terms of the conveyances set out above, it is common ground that the Claimants, and everyone else who had lived in the cul-de-sac before the Taylors moved into No. 96, thought that the Access Road was a common access that they all shared. This is clear from a deed of covenant dated 9 June 1992 made between the Straffords (who then owned No. 94), the Potters (who then owned No. 96) and the Tansinis (who then owned No. 98) whereby they covenanted with each other to ontribute one-third of the costs of maintaining repairing and cleansing the common access way serving the three dwelling houses [the Access Road] and the services thereon and thereunder. In the deed the Straffords, the Potters and the Tansinis are together called the Owners three dwelling houses, and there is no reference to any particular person owning the Access Road. A deed in identical terms was executed on 19 June 1992, although it is not clear why this was necessary. The Manders entered into a deed of covenant in identical terms with the Straffords and the Potters when they purchased No. 98 from the Tansinis in 1993.
32. It is also common ground that the conveyances of Nos. 94 and 98 do not contain, or reserve, any right to park on the Access Road for the benefit of each of these properties. The only way a right to park can have been acquired for the benefit of these properties is by prescription.
(2) In terf eren ce w ith th e C lai man ts u ser of th e A c cess Road
33. In B&Q Plc v Liverpool and Lancashire Properties Limited (2001) 81 P&CR 20
Blackburne J held (para 47) that:
if the grantee has contracted for the relative luxury of an ample right, he is not to be deprived of that right in the absence of an explicit reservation of a right to build on it merely because it is a relative luxury and the reduced, non-ample right would be all that was reasonably required.
34. In relation to the test for actionable infringement of a right of way the parties are agreed that:
the test is one of convenience and not necessity or reasonable necessity, provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?
see B&Q Plc (at para 48).
35. I heard evidence from a number of witnesses as to how the occupants of Nos. 94 and 98 have used the Access Road over the years. For the Claimants, I heard oral evidence from Mrs Mander, Mr Strafford and Mr Begley. Mr Strafford was an important witness as he lived at No. 98 for over 30 years from 1973 until 2006. Mr Mander and Mrs Begley had each served very short witness statements, which confirmed what their respective spouses had said in their evidence. They were not called as witnesses as Counsel agreed that their evidence did not add anything, and they agreed not to take any point against each other that these witnesses had not been called. The Claimants also served hearsay notices in respect of witness statements from Mr Antony Potter and Mrs Rachel Tansini. The hearsay notices stated that Mr Potter would be in the USA at the time of trial and that Mrs Tansini resides in Scotland.
36. In relation to this evidence, Mrs Mander and Mr Begley were truthful and careful witnesses and I accept their evidence. I also found that Mr Stafford was a careful and honest witness, who wanted to ensure the Court had accurate evidence about what had happened in this cul-de-sac over the many years he had lived there. I accept that less weight can be given to the evidence of Mr Potter and Mrs Tansini, as their evidence has not been tested by cross-examination. There were also some conflicts between the evidence of Mr Strafford, on the one hand, and Mrs Mander, Mr Begley and Mrs Tansini, on the other. The findings I have made in respect of these matters are explained below.
37. For the Defendants, I heard oral evidence from Ms Samantha Potter, Mrs Taylor and Mr Taylor. Ms Potter was a potentially important witness as she had lived at No. 96 from 1992 until about 2002. However, I did not find her to be a reliable witness. There were a number of reasons for this. Although it was not clear to me why, she appeared very keen to assist the Defendants with the answers that she gave in evidence and, before giving evidence, she had travelled to Court with the Taylors on the train and had discussed her evidence with them. She exaggerated the total number of vehicles the Potters had parked outside No. 96 at any one time. In cross- examination, she did not recognise parts of her own witness statement and she had no understanding of the plan attached to her witness statement, which was said to show where the cars at No. 96 parked when her family lived there. It appeared that she had not seen or understood this plan before giving evidence and she had certainly had not been involved in drawing it. Where there is any conflict between Ms Potters evidence and the evidence of the Claimants witnesses I prefer and accept the evidence of the Claimantswitnesses.
38. Mrs Taylor was a reticent and careful witness, but she was reluctant to answer questions that did not help her case. Mr Taylor was much more animated, and somewhat argumentative, in response to the questions he was asked. In the most part I accept that Mr and Mrs Taylor gave truthful answers to the questions they were asked. However, having observed the witnesses give their evidence I am satisfied that where there is any conflict between Mr and Mrs Taylors evidence, and the evidence of Mr Strafford, Mrs Mander and Mr Begley, I prefer and accept the evidence of the Claimants witnesses.
(a) No. 98 (the Manders) user of the Access Road since 1973
39. Peter and Joyce James moved into No. 98 in 1973. Peter James was the twin of Patrick James and, according to Mr Stafford, they did everything together. Peter and Patrick James and their respective wives did a great deal of entertaining, so both families often had visitors with cars. The paving for the Footpath which leads from the side-gate of No. 98 right up to No. 96 was put down by Peter James and he, or the Developer, erected the Fence.
40. Peter and Joyce James had two cars. They kept one car in the garage, and one car was parked outside the garage on the Access Road. Mr Strafford (whose evidence I accept) explained that, as to where this car was parked, it was parked along side the Footpath by the rear garden. He explained that it was much easier to park further down the drive (ie further away from Fulmer Road). This was because the area adjacent to Fulmer Road was much narrower and therefore not such a good place to park, and it was rare to see a car parked there. I understand from Mr Straffords evidence that any of Peter and Joyce James visitors parked their cars on the Access Road between the side-gate to No. 98 and the boundary to No. 96, alongside the Footpath and the Fence.
41. When Peter children grew up, and his two sons started driving, there were four cars at No. 98. Mr Strafford said that Peter sons started driving when they reached 17, which was some time in the 1980s but he could not remember exactly when. In relation to these four cars, Mr Strafford explained that one was parked in the garage, one car was parked diagonally adjacent to the side-gate to the rear garden of No. 98 (so that one end was tucked into the western part of the Lay-by, and the other end was on the Access Road) and the other two cars were then parked behind that car on the Access Road and adjacent to the Footpath and the Fence. This arrangement no doubt ensured that plenty of room was left between the car which was parked furthest to the west, and the back door and garage of No. 96.
42. The Tansinis moved into No. 98 in June 1992. The Tansinis had two cars. Mrs Tansini has said in her witness statement that:
Whilst we lived there, there were no restrictions on parking and everyone parked freely, although it was usually outside our own houses. During the daytime, we would park our cars either in front of our garage or beside the fence that ran from our garage down the side of our garden as far as number 96 Fulmer Road. We kept both our cars in the garage at night.
43. During the day the Tansinis kept their two cars outside the garage. This statement was put to Mr Stafford, who confirmed that this was an accurate statement. In cross- examination Mr Stafford was asked to explain where, if one car was parked in the garage, where the other car was parked. He said that that car would be parked diagonally adjacent to the side-gate, so partly in the Lay-by and partly on the Access Road (as he had explained in relation to one of the Jamescars; see paragraph 41 above) or diagonally by the eastern edge of garage door, so partly in the eastern end of the Lay-by and partly on the Access Road. He said it could be either, and he saw this primarily at weekends when he was at home. Mr Gunaratna suggested to Mr Strafford at the end of his cross-examination that the Tansinis habitually parked their two cars in the two diagonal places just described, and not along the Fence. Mr Straffords answer was I think that is probably true.
44. In trying to understand Mr Strafford and Mrs Tansini evidence on this point, it seems to me that it is important to remember that during the week Mr Stafford was away from No. 94 for a large part of the day. I appreciate that Mrs Tansini has not been cross-examined, and the fact she is in Scotland is not the most compelling reason for not attending court. Nevertheless, I have no reason to think that her evidence, which is verified by a statement of truth, is not true. There are, of course, no precise parking places marked out on the Access Road. In these circumstances, I find that during the day the Tansinis regularly parked their two cars adjacent to their property at No. 98 and they did so where convenient. This was either on the Access Road along side the Footpath and Fence, or by parking diagonally at the edges of the Lay- by on part of the Access Road as Mr Strafford described, or by parking in front of their garage. If they parked in front of their house, then I find that on many, if not all, occasions this would have been partly on the Access Road. This is because Mrs Tansini says that everyone parked freely and therefore there was no need to park the car precisely within a specified area which has been referred to in these proceedings as Lay-by or tight against the garage.
45. The Tansinis had visitors as well (this is referred to in paragraph 10 of Mrs Tansini statement, and this was not challenged) and Mr Straffords evidence was that guests almost certainly parked along side the Fence.
46. Mr and Mrs Mander moved into No. 98 in December 2001. Their son with lived with them between 2001 and 2005 and they each had a car. The Manders are now both retired, and regularly spend time in Wales.
47. Between December 2001 and November 2003 Mr and Mrs Mander and their son did not use their garage for parking. Rather, they parked their three cars to the west of and outside the house and garage of No. 98. Mrs Mander illustrated this with the plan that was annexed to her witness statement. She called the parking area for three cars a parking strip and in cross-examination she made it clear that the parking strip goes to the west of the side gate to the rear garden of No. 98. On the plan the parking strip is shown only on the Access Road. However, the plan is only approximate and it was clear to me from the answers that Mrs Mander gave in cross-examination that she was not seeking to draw any precise distinction between the area Mr Gunaratna referred to as the Lay-by and the Access Road beside No. 98. She was certainly not omitting any reference to the Lay-by in her evidence in order to falsely represent where her husband had taken to parking, a point which was put to her in cross- examination. Rather, I am satisfied on the evidence that the purpose of the parking strip identified by Mrs Mander was to show, in approximate terms, where parking had taken place outside No. 98 since 2001 so as not to inconvenience the neighbours, which was something she and her husband were careful to avoid. Mrs Manders evidence was that occasionally she and her husband have parked outside the parking strip for example where they have been having work done or when they have had visitors.
48. In November 2003 electric doors were installed in the garage and since then Mrs Mander has usually parked her car in the garage. However, if she had been out in her car, and was only returning home for a short time, she drove into the Access Road, turned her car around and parked outside her house. She does not put the car in the garage in these circumstances.
49. Mrs Manders son moved out in 2005. Since then, the parking strip has been used by her husband plus any visitors. The visitors are the Manders two sons (who rarely visit together) and the gardener. Mr Mander usually parks his car on the Access Road, adjacent to his property by the Footpath and Fence and just beyond the garden gate of No. 98. He has usually parked his car in this position since 2001 and he never puts his car in the garage. In addition to Mrs Mander, Mr Begley also gave evidence that this was where Mr Mander parked his car, and that he had seen him do so since 2006. This differs from the evidence I heard from Mr Strafford at the very end of his cross-examination when he agreed with the proposition from Counsel for the Defendants that Mr Mander habitually parked his car in the diagonal positions described at paragraphs 41 and 42 above, and not on the Access Road alongside the Footpath and Fence. However, Mr Strafford did not have any recollection that Mr and Mrs Mander son had lived at No. 98 for 4 years, or where he had parked his car. Further, Mr Strafford left No. 94 in 2006, whereas Mrs Mander has been living at No. 98 since 2001, and Mr Begley has been living at No. 94 since 2006. In these circumstances, I think that Mrs Mander and Mr Begley recollection of where Mr Mander usually parked his car is likely to be, and is, more reliable than that of Mr Strafford and I find that since 2001 Mr Mander usually parked his car on the Access Road, alongside the Fence. Ms Potters evidence does not assist on this point, as her answers were not reliable.
50. Mr Mander likes to park facing Fulmer Road, so that he drives into the Access Road, turns round and then parks his car ready to leave. Mr Mander did not regularly park in the Lay-by before September 2012. The two new gate posts which have now been cemented into the southern side of the Access Road are located at the far end of Mr Manders usual parking position which, together with the fencing, have made it impossible for Mr Mander to drive into the Access Road, turn round and park in his usual position. This has meant that since September 2012 he has usually parked in the Lay-by as the rest of the Access Road has been restricted and, in addition to that, Mrs Taylor has taken to parking her car where Mr Mander used to park his car.
51. The plan to Mrs Manders witness statement also identifies the turning circle indicating where she and her husband have turned their cars on the Access Road between 2001 and September 2012. This turning circle is immediately to the west of the Taylors proposed gate. Mr and Mrs Mander have always driven down the Access Road and used the area beyond the new gate posts for turning their cars around and the Begleys have done the same since they have lived at No. 94. The Potters and the Taylors usually had a car in front of their house, so the Manders did not drive right up to the front of No. 96 to turn their cars. There was never any problem turning in that area when the Potters lived at No. 96. Nor was there any problem after the Taylors moved to No. 96 in 2007. Rather, the problem only arose when the Taylors started works to the Access Road in September 2012 and, at the same time, cemented the new gate posts into the Access Road (as set out at paragraph 17 above).
52. From September 2012 the gate posts have caused obstruction, one third of the Access Road has been dug up and fenced off and the western end of the Access Road has been taken completely out of use. The Claimants have been forced to use the eastern part of the Access Road for turning. This is something which Mrs Mander said she found very dangerous, particularly when lots of vehicles were parked in the Access Road. Further, prior to September 2012 Mr and Mrs Mander did not use the area between the garages to Nos. 94 and 98 for turning, and I reject Mr and Mrs Taylors evidence that that is what they saw them doing between 2007 and September 2012. It is only since September 2012 that the Manders have had to use this area for turning, as the Taylors works to the Access Road have left them with nowhere else to turn, particularly in the light of the large number of vehicles attending at No. 96 and parking in front of (and to the east of) the green barrier fencing. In addition to all of this, Mr and Mrs Mander have also experienced numerous incidents when access to their garage has either been blocked or restricted by the Taylors vehicles or their visitors vehicles. Mrs Mander provided examples of these incidents in her witness statement, and none of her evidence in this regard was challenged in cross- examination.
53. Further, since 17 September 2012 Mr and Mrs Mander have used the area referred to as the Lay-by for parking their cars or the cars of any visitors, such as their gardener or their sons. However, it is difficult and inconvenient for two cars to park in the Lay-by. This is because one car has to park directly across the garage to No. 98, and the other car has to park across the back entrance to the house and side-gate to the rear garden. In addition to that, if there is to be access for Mrs Mander to park her car in the garage, then Mr Mander has to park his car with the front facing Fulmer Road and the rear of the car right up against the Fence. When this is done it is almost impossible to open to the boot of Mr Manders car and, when a car in parked in this position, it is very hard to get into the back entrance to the house or through the side- gate into the rear garden.
54. The Manders have also used the western section of the Access Road to get to the trees and shrubs that come over the top of the Fence and which they cannot access from the rear garden of No. 98. They use the Footpath to do this, but sometimes it is also necessary to step into the Access Road in order to access these trees and shrubs. Mrs Mander gets a tree surgeon to do the trees every 18 months and the tree surgeon parks in the Lay-by or on the Access Road and the shredder used is parked further along the Access Road to the west (as the tree-surgeon vehicle and the shredder cannot both fit in the Lay-by).
(b) No. 94 (the Begleys) ser of the Access Road since 1973
55. Mr Strafford was a Fellow of the Institute of Chartered Accountants. Having qualified as an accountant he went into industry and from 1977 until 2006 he was Chairman of a business in the Docklands, London. He retired in 2007. He would drive to work leaving home at 8.15am and returning at 7.45pm. He was the Chairman of the Gerrards Cross Conservative Association from 1977 until 1980 and from 1985 until 1990 he was the Chairman of the Beaconsfield Constituency Conservative Association. As a result of these positions, he would only be at home for a short period on a weekday evening as he would return home and then go out to a function four or five nights each week. He would not return home again until 10.30 or 10.45pm.
56. It was clear from Mr Strafford evidence that he and his wife were very sociable and often entertaining at No. 94 Fulmer Road. They had guests at the house twice a week. In addition to that, given his position in local politics he was visited at home by Michael Portillo and Geoffrey Howe. When that happened, he invited lots of people to come as well. He said there would have been between 50 and 100 people, and the whole of the Access Road was full of cars. If this was going to happen, then he would speak to his neighbours and they would co-operate by parking their cars in their garages. Likewise, the Straffords would do the same if either of their neighbours were entertaining. They all got on very well and Mr Strafford and his wife did not experience any problems in relation to the using the Access Road or parking cars in the 33 years they lived at No. 94. The aerial photograph he produced in evidence, which was taken around 2002, shows one car comfortably parked on the Access Road outside the house of No. 94, one car parked outside the garage of 96 and one car outside No. 98 (but to the west of the garage).
57. Mr Strafford put the Verge down and seeded the flower beds after he moved into No. 94 in 1973. He cut the grass every week all along the Verge, which went the whole way down the Access Road and finished next to the garage door of No. 96. He also weeded this area, which was part of his garden. If Mr Strafford and his wife had friends visiting, they would park their cars on the Access Road alongside the Verge.
58. When Mr and Mrs Stafford moved into No. 94, they had two cars. Mr Strafford kept his car in the garage overnight. His wife car would remain on the Access Road. She parked outside the house, but away from the garage and further back towards No. 96. If they were at home during the day they used to park both cars on the Access Road in front of their house and in Mr Straffords case he would park his car by the Verge. However, if there was a function or party, they could park both cars in the garage but he said this was a tight squeeze.
59. On a weekday when Mr Strafford returned home from work at 7.45pm he would drive down the Access Road, do a three point turn and then park his car on the Access road, either before or after his wife car (in which case it was parked along side the Verge), but in a position to shoot straight off again. He did his three-point turn lmost in the middle the Access Road between his house at No. 94 and No. 96. Mr Straffords evidence, which I accept, was that his wife turned her car in exactly the same position, and this would have been several times day. Likewise, Peter James and his family, who lived opposite at No. 98, turned their cars in exactly the same part of the Access Road. This was because it was much easier to turn there.
60. Mr and Mrs Begley moved into No. 94 in September 2006, with their two young children and a third child was born in 2008. They have two cars and they have never used their garage for parking. Rather, they have parked on the Access Road adjacent to their property to the west of and outside the house and garage of No. 94. Mr Begley called the parking area for two cars a parking strip and this was shown on the approximate plan annexed to his witness statement. This strip mirrors the parking stripwn on the same plan in relation to the parking outside No. 98.
61. From 2007 Mr Begley usual parking place has been on the Access Road just beyond the side-gate to the rear garden of No. 94. This is opposite where Mr Mander usually parks his car. In relation to the new gate posts put into the Access Road in September 2012, the northern one is located immediately behind where Mr Begley usually parks his car. The gate post, together with the barrier fencing, has made it impossible for Mr Begley to drive into the Access Road, turn his car around, and pull forward into his usual parking space. This is because his usual turning circle has been completely obstructed. Rather, the best he can hope to do is reverse into this space, provided there is no other vehicle parked there.
62. Mrs Begley usually parks her car on the Access Road in front of the garage to No. 94, although when the Begleys first moved to No. 94 in 2006 it was the other way round and Mr Begley would park his car in front of the garage. When the Begleys have visitors, such as Mr Begley elderly father, the visitors normally park adjacent to their front garden or behind where their own cars are parked, which they then squeeze up as close as possible in order to maximise the space.
63. From September 2006 when the Begleys moved into No. 94 they have used the western part of the Access Road to beyond their side-gate to turn their cars around. They were able to do so when the Potters lived at No. 96. This is because the Potters parked their three cars in a line, which was one car deep, at the end of the Access Road. They were also able to do so when the Taylors moved into No. 96, notwithstanding the building materials and vehicles on the Access Road relating to the Taylors building works to their house. The Begleys did not use the area between the garages of Nos. 94 and 98 to turn their cars before September 2012 and I reject the evidence given by the Taylors and Ms Potter in this regard. The Begleys were prevented from using their usual area for turning once the Taylors began works to the Access Road in September 2012. It is clear that parking and use of the Access Road has been a real challenge since September 2012 and Mr Begley gave several examples in his witness statement where either his, or his wife car, has been blocked in. None of this evidence was challenged in cross-examination.
64. Mrs Begley also uses the Access Road in order to prune the trees which are located between the side-gate to the rear garden of No. 94 and No. 96 and, until September 2012, she would do this regularly two or three times a year. The Begleys have never had anything stolen from their house or garden since they moved into No. 94.
(c) No. 96 (the Taylors) ser of the Access Road since 1973
65. Patrick and Anne James moved into No. 96 in 1973. Patrick James and his wife had two cars. They kept one car in the garage and one car was parked on the Access Road. Mr Strafford said this car was parked in front of the garage. When Patricks children grew up there were then three cars at No. 96. Again one car was kept in the garage and the other two were parked on the Access Road.
66. Anthony and Jenny Potter moved into No. 96 in 1992. They had two teenage daughters, and a younger son. Ms Potter was born in 1977 and her sister was born in 1979. Her brother was born in 1985. Ms Potter moved out of No. 96 some time around 2002. Mr Strafford said the Potters did some entertaining, but it was less than the James family.
67. Mr Potter in his witness statement states that we were a six car family and in the early days had a small boat parked at the bottom of the drive. We rarely garaged any of our cars. Mrs Tansini said that the Potters had several cars (three I believe). Mr Strafford remembered the boat was parked in the corner of the Access Road and when the Potters were at home their vehicles were parked on the Access Road (and not in the garage). Mr Strafford said that Mr Potter was away quite a lot as he was the managing director of Intercontinental Hotels and Mrs Potter was away part of the time as well. He said that, if the Potters were away, they would put a car in the garage. Mr Strafford was positive the Potters did not have as many as six cars. Mrs Manders evidence was that, by the time she had moved into No. 98 in 2001, Mrs Potter was on her own as the children had all moved out and her husband was abroad. She said that quite often there was only one car parked outside No. 96, and that was Mrs Potters jeep which was parked in front of the garage. Mrs Mander had never seen a boat outside No. 96. The Claimantses all agreed that the Potters parked their cars considerately, usually in a line in front of their garage.
68. Ms Potter, on the other hand, said that when all members of her family were driving there were six cars, there was a trailerboat on the driveway, and then there were the cars of friends as well. She also said that her parents never parked in the garage, as the garages contained fridges and freezers. As to the parking arrangements in these circumstances, she said in her evidence in chief that they would monopolise the bottom of the driveway, by which she meant the whole of the western section of the Access Road. She demonstrated this by drawing 9 cars (six cars for the Potters, and three for visitors) plus a boat on the aerial photograph from 2002 produced by Mr Strafford.
69. It is difficult to know how many cars the Potters had parked outside No. 96 at any one time, or to what extent they used their garage for parking. It may well be, as Mr Potter says, that when his children were all grown up and driving they had six cars between them. However, in the light of the all other evidence I have heard, I find that it would have been a very rare occasion for all six cars to be outside No. 96 at any one time and by the time Mr Potters son was eligible to drive in 2002 the boat was no longer there, as Mrs Mander had never seen it. In any event the evidence of Mr Strafford, Mrs Mander, Mr Begley and Mrs Tansini is that in all the time the Potters lived at No. 96 they never had any problems turning their cars around, as they usually did, in the western section of the Access Road and they never had any problems parking their cars where they usually did on the Access Road. This evidence, which I accept, corresponds with the information provided by Mr and Mrs Potter in the Sellers Property Information that they signed on 8 March 2007 prior to selling No. 96 to Mr and Mrs Taylor. That form does not identify any disputes in relation to parking or use of the Access Road. I reject Ms Potter evidence about her familys parking arrangements outside No. 96 which, having watched her give evidence, I am satisfied was exaggerated.
70. Mr and Mrs Taylor moved into No. 96 in the summer of 2007. They have a large family who regularly come to visit them. Mr and Mrs Taylor both work full time, and Mr Taylor works in the building industry. They have been doing building works to No. 96 ever since they moved in and this has increased the number of vehicles on the Access Road. As part of these works the Taylors have converted the garage into part of their house, so that the front of the house now faces directly out to Fulmer Road. Notwithstanding this, the Claimants did not have any problems with their usual parking or turning arrangements until the Access Road was dug up in September 2012.
71. The Taylors started work on the Access Road, namely the large area in front of their house, on 17 September 2012. As a result of these works, one third of the Access Road is now paved with Indian Stone and has the appearance of a giant patio. Nevertheless, Indian stone is, according to Mr and Mrs Taylor, strong enough to park cars and lorries on. In addition to the three gate posts now cemented into the Access Road, Mr and Mrs Taylor have installed a footing for a fence adjacent to the Footpath and between the southern gate post and No. 96. The reason for this is because the
Taylors would like to erect a fence between the proposed gate and their house, thereby enclosing the whole of the newly paved area of the Access Road. Mr and Mrs Taylor are not seeking, and do not intend to seek, any contribution from the Claimants to the cost of these works to the Access Road.
72. Mr Taylor evidence was that the design of the proposed gate was not yet finalised.
He said they had not decided whether it should be a swing gate or sliding gate. However, if it was a swing gate, then the gates would need an arc in order to swing in towards No. 96 through 180 degrees, and then end up against the fenced part of the gate. If, on the other hand, it was a sliding gate, Mr Taylor was unable to explain where the sliding part of the gate would end up in order to provide access through the gate to No. 96. In cross-examination, Mr Taylor accepted that there was nothing to prevent a person walking past the gate towards No. 96 on the Footpath or the Verge. He then said that the proposed gate is a bit of an illusion and not ideal.
(d) Conclusion on substantial interference
73. In short, Miss Cox submits that the proposed gate (in whatever form it may take) will prevent the Claimants from turning their cars round in the western (and widest) section of the Access Road as they and their predecessors have done since 1973, it will halve the width of the Access Road and be used by the Taylors to create a closed forecourt in the front of No. 96 and, as has happened with the fencing in place since September 2012, anyone visiting No. 96 will park to the east of the gate, and that will interfere with the Claimantsentitlement to use of the Access Road just as has happened over the last 18 months when the barrier fencing which has been in place.
74. In response to this, Mr Gunaratna invited me to find on the facts that the Claimants and their predecessors in title have made no substantial use of the land to the west of the proposed gate. However, in his closing submissions he recognised that if I find as a matter of fact that the Claimants, and their predecessors, have always turned their cars to the west of the proposed gate, that he would have great difficulty persuading me that having a gate where they turned their cars would not be substantial interference with their rights of way. He also reminded me that the Taylors have very strong reasons for wanting to install a gate, and this is because they have genuine concerns about security at No. 96 and in the area, and they do not wish to have any of their 10 grandchildren at large in the Access Road.
75. The evidence that the Claimants, and their predecessors, have all used the western section of the Access Road to turn their cars is overwhelming. This is not surprising. It is the widest part of the Access Road with a Footpath on one side and the Verge on the other. This means that, even with other cars parked in the Access Road, there is plenty of room to turn a car round with very little difficulty. Further, the Claimants and their predecessors have turned their cars round in this part of the Access Road where there has been room to do so, and not in any specific place. The fact that turning is possible and easy to do in this part of the Access Road was, of course, the very purpose of the condition imposed on the planning consent for the cul-de-sac in 1970 (see paragraph 6 above).
76. It is obvious that a gate in the location of the proposed gate will prevent the Claimants from turning their cars in this area. This, in turn, will make the turning of vehicles in the Access Road much more difficult, as has been the position since September 2012 when the Taylors cemented three gate posts into the Access Road and put the barrier fencing up.
77. I do not know what type of gate the Taylors want to install. However, even if I was provided with particulars, I would not be satisfied that any gate in the location proposed would, or could be, convenient to use. Given the number of vehicles that attend at the Taylorsome, and given what has happened when the works to the road have been going on over the last 18 months, I agree with Miss Cox that what will happen is that cars, vans and lorries will simply park to the east of the gate and not wait for it to open. That will block the Access Road and make it even more difficult for the Claimants to turn cars around or park (see below). In addition to that, before beginning works on the Access Road the Taylors did not show any consideration towards their neighbours or seek to engage in any form of constructive discussion about the works that they proposed, or how this would impact on their neighbours. Rather, they presented their neighbours with what they wanted to do and, irrespective of their neighbours views, just went ahead and did the works they wanted and this, in turn, has caused over a year of disruption and inconvenience to the Begleys and the Manders. In these circumstances, I doubt they would show much co-operation or consideration to their neighbours in relation to the operation of any gate.
78. Further, I am not persuaded that Mr and Mrs Taylors real reason for wanting to install a gate in front of No. 96 is for the purposes of security. There are a number of reasons for this. First of all, it is possible to simply walk round the gate either on the Footpath or the Verge and therefore it does not provide any security at all. Indeed, Mr Taylor referred to this as an illusion. Second, Mr and Mrs Taylor are able to secure No. 96 by locking the front door and two side gates. This, apart from anything else, will keep any children in the house, or in the garden and away from the Access Road. Third, the Manders and the Begleys have never had anything stolen from their properties all the time they have lived in Fulmer Road. Mrs Taylor said she had had a hanging basket stolen, but nothing more substantial than that. She said that she was aware that Mrs Potter had had her handbag stolen, and Ms Potter referred to that. But from the terms of Ms Potters evidence, the Potters were somewhat cavalier about locking or securing No. 96 so it is perhaps not surprising that an incident like that could have happened, if indeed it did.
79. Rather, I think the real reason that Mr and Mrs Taylor have installed the gate posts, laid out extensive paving with Indian Stone, and have said they would like to put a fence up between the gate and No. 96 alongside the footpath and verge, is because they want to create a large enclosed area in front of No. 96 that they can only use for themselves. Mr Taylor said as much in cross-examination when, in response to one of Miss Cox questions, he referred to the Access Road and said that in a situation like this if veryone has their area then it works much better. By this he meant that he and his wife should have the one-third of the Access Road in front of No. 96 for their own use, and the Claimants should have the remainder of the Access Road for their own use, that would be bettereveryone. That novel approach involves disregarding the Claimants rights of way over the Access Road, something which the Taylors are not entitled to do.
80. I therefore find that gate posts which have been cemented into the Access Road, and the proposed gate, are a substantial interference as they will prevent the Claimants from exercising their rights of way and rights to park (which I turn to next) as conveniently as before.
(3) Claiman ts righ ts to p ark on th e Access Road
81. It is now clear that a right to park is capable of being an easement and that such an easement can be acquired by prescription: Moncrieff v Jamieson [2007] 1 WLR 2620, HL at [47] per Lord Scott, and [137] per Lord Neuberger. However, an easement cannot be claimed if its effect is to deprive the servient owner of the benefits of ownership. In Batchelor v Marlow [2003] 1 WLR 764 the Court of Appeal held that, in the case of parking spaces, an easement of parking could not exist if the use of the land for parking left the owner of the servient land without any reasonable use of his land so that his ownership was rendered illusory. Batchelor was criticised in Moncrief, but not overruled. Batchelor is therefore binding on me and I must apply it unless I can distinguish it.
82. Virdi v Chana [2008] EWHC 2901 was an appeal to the High Court by Mrs Virdi against a decision of the Adjudicator to HM Land Registry. In that case a parking easement was claimed over an area of land, the Disputed Land or gravelled area, where there was only space to park one car, and only part of which belonged to Mrs Virdi. The Adjudicator held that an easement to park existed because, amongst other things, Mrs Virdi could plant trees and shrubs on the servient land and tend to them (provided they did not obstruct the right to park), she could put bicycles on the land and she could alter the surface. Her ownership was therefore not rendered illusory. His Honour Judge Purle QC held that Batchelor could be distinguished on the facts, agreed with the reasons identified by the Adjudicator and dismissed the appeal. His Honour Judge Purle QC also said (at para [25]) that:
Altering the surface did not commend itself to the Court of Appeal in Batchelor v Marlow, but where, as here the parking place is adjacent to a domestic property, the ability of the domestic owner to alter the surface for aesthetic reasons cannot be dismissed as wholly insignificant or illusory.
83. The Claimants claim to a right to park is based on prescription. This claim cannot be made at common law as the properties and Access Road were only built in 1973. The Claimants therefore rely on the doctrine of lost modern grant or the Prescription Act 1832. In either case the features of prescription are the same, as these proceedings were commenced four months after the Taylors blocked up the Access Road. This means that the Begleys, as the owners of the dominant tenement at No. 94, must show at least 20 years uninterrupted enjoyment as of right, that is nec vi, nec clam, nec precario (not by force, nor stealth, nor with the licence of the owner), of that which they now claim to be entitled to enjoy by right, namely to park adjacent to their properties on the Access Road. The Manders need to do the same in respect of their claim to park on the Access Road for the benefit of No. 98. The user by which an easement can be acquired by prescription must be by a person in possession of the dominant tenement and there was no issue between the parties that that includes any user by invitees or visitors of the person in possession of the dominant tenement. In relation to the quality of the enjoyment of the user it must be also be definite and sufficiently continuous in its character (see, for example, Gale on Easements (19th Edition at para 4-143) or, as Mr Gunaratna put it in his skeleton argument, the parking must be shown to have been of such a character, degree and frequency as to indicate an assertion by the Claimants (or their predecessors) of such rights.
84. Miss Cox submitted that the owners of Nos. 94, 96 and 98 have, over the years, parked where convenient. She said that in these circumstances it was an artificial process to try and identify where cars parked and when. She said that what the Claimants are asserting is a right to use the Access Road to park where they like, providing they are not interfering with the parking by the owners of the other properties in the cul-de-sac. Mr Gunaratna submitted that is not the correct approach. Rather, he said that it is necessary to concentrate on the historic use and analyse the evidence in order to see whether it supports the actual user, and extent thereof, claimed by prescription. I agree with Mr Gunaratna that a broad brush approach is not appropriate. It is for that reason that I have set out the parking arrangements in relation to each property in some detail above.
(a) No. 98 (the Manders)
85. It is clear from the evidence that from February 1973 until 2007 there was give and take between the occupants of No. 98 and their neighbours at Nos. 94 and 96 in relation to parking so that, if there were more visitors than usual to a particular property, the other neighbours were made aware of this, so they could park their cars in such a way in order to ensure that there was enough room for visitors to park on the Access Road. However, none of the occupants of No. 98 were ever given permission by the owners of No. 96, either for themselves or their visitors, to park on the Access Road. Rather, the occupants of No. 98 and their visitors have just parked on the Access Road and they did so with consideration for the occupants of the neighbouring properties who, until recently, they thought shared the use of the Access Road.
86. Based on the evidence set out above, I find that between 1973 and September 2012 the owners or occupants of No. 98, and their visitors, parked their cars on the south side of the Access Road adjacent to their property as follows (and in the manner described above):
i) From February 1973 until 1 January 1990 (at the latest) one car was regularly parked on the Access Road during the day and overnight. This was the car of Peter or Joyce James. The reason I have taken the date of 1 January 1990 is because it is not clear to me when Peter James sons started driving. However, in the light of Mr Strafford evidence, Peter James sons must have both started driving by, at the very latest, 1 January 1990.
ii) From 1 January 1990 (at the latest) until July 1992 there were three cars regularly parked on the Access Road during the day and overnight. These were the cars of Peter or Joyce James and their two sons.
iii) From July 1992 to December 2001 the Tansinis two cars were regularly parked on the Access Road during the day.
iv) From December 2001 until November 2003 the Manders two cars, plus their son car, were regularly parked on the Access Road during the day and overnight.
v) From November 2003 until 2005, Mr Manders car and his son car were regularly parked on the Access Road during the day and overnight, and Mrs Manders car was also regularly parked on the Access Road for brief periods during the day.
vi) From 2005 until September 2012 Mr Mandercar was regularly parked on the Access Road during the day and overnight. Mrs Mander car was also regularly parked on the Access Road for brief periods during the day.
vii) It was clear from Mr Staffords evidence that each of these families have had regular guests and visitors with cars, and the visitors parked beside the Footpath and Fence. In recent years the Manders have had visitors much less frequently, but they do have a gardener who attends at their property by car and their sons have visited by car from time to time.
87. The servient tenement is, of course, the whole of the Access Road. This use of the south side of the Access Road for parking by the occupants of No. 98 does not, and has not, rendered the Taylor use of the servient tenement illusory. This is because, even with Begleys cars parked on the north side of the Access Road, there is still plenty of room for the Taylors to drive along the Access Road to their house, and park their own cars in front of No. 96. The Taylors have also altered the surface of the Access Road for aesthetic reasons that the western end is now paved like a patio with Indian Stone. In these circumstances, Batchelor can be distinguished as the Taylors have not in these circumstances been deprived of their reasonable use of the Access Road.
88. In these circumstances, I conclude that the Manders, as the owners of No. 98, have established over 20 years uninterrupted user of a right to park up to three cars on the Access Road adjacent to their property. This is because, on analysis, three vehicles were parked outside No. 98 by the owners or occupiers of No. 98 and their visitors sufficiently frequently to establish a right to park up to that number of vehicles on the Access Road. However, I do not consider this is a right to park anywhere on the southern side of the Access Road adjacent to No. 98. Rather, it is a right for up to two cars to park immediately to the west of the side-gate to No. 98 alongside the Footpath and Fence, and for the other area of parking to be between the side-gate to No. 98 and the eastern edge of the garage.
89. In closing submissions, Mr Gunaratna conceded on behalf of his clients that they had no objection to Mr and Mrs Mander parking on the Access Road in the diagonal positions at the edge of the Lay-by that Mr Strafford had identified during the course of his evidence (and which I have described at paragraphs 41 and 42 above). However, as I have explained above Mr and Mrs Manders rights to park on the Access Road are more extensive than this.
(b) No. 94 (the Begleys)
90. As with No. 98 it is clear from the evidence that from February 1973 until 2007 there was the same give and take between occupants of No. 94 and their neighbours at Nos.
96 and 98 in relation to parking as I have set out paragraph 85 above. Further, Mr and Mrs Strafford never had permission to park their cars, or their visitorscars, on the Access Road.
91. Based on the evidence set out above, I find that between 1973 and September 2012 the owners of No. 94, and their visitors, parked their cars on the north side of the Access Road adjacent to their property as follows (and in the manner described above):
i) From February 1973 until 2006 Mrs Straffords car was regularly parked on the Access Road during the day.
ii) Further, from February 1973 until 2006 when Mr and Mrs Stafford were at home together two cars were parked on the Access Road. This was at the weekend, as Mr Strafford was at work in London every weekday. It was also when Mr Strafford returned home on a weekday evening and his car was briefly parked outside on the Access Road.
iii) From 2006 until September 2012 the Begleys two cars were parked on the Access Road during the day and at night.
iv) It was clear from Mr Staffords evidence that he and his wife had very regularly had guests and visitors with cars when they were at home. Mr Stafford said visitors parked alongside the Verge. The Begleys also have regular visitors with cars, including Mr Begley father.
92. I am satisfied that Batchelor can also be distinguished in the case of the Begleys claim to a right to park, for the same reasons set out at paragraph 87 above.
93. In these circumstances I conclude that the Begleys, as the owners of No. 94, have established over 20 years uninterrupted user as of right to park up to three cars on the Access Road adjacent to their property. This is because, on analysis, three vehicles were parked outside No. 94 by the owners of No. 94 and their visitors sufficiently frequently to establish a right to park up to that number of vehicles on the Access Road. However, this is not a right to park anywhere on the northern side of the Access Road adjacent to No. 98. Rather, it is a right for up to two cars to park immediately to the west of the side-gate to No. 94 alongside the Verge, and for the other area of parking to be between the side-gate to No. 94 and the eastern edge of the garage.
Result
94. I will therefore:
i) make the declaration sought in the particulars of claim as to the Claimants rights of way over the Access Road,
ii) make an order that the Taylors remove the three new gate posts from the Access Road (and reinstate the surface of the Access Road), and iii) dismiss the counterclaim.