Central Midlands Estates Ltd v Leicester Dyers Ltd

Adverse possession — Parking — Right of way — Defendant’s employees parking on claimant’s land and using access road for that purpose — Claimant seeking vacation of caution registered by defendant — Whether defendant acquiring title to land by adverse possession — Whether easement of parking — Whether right of way over road — Claim allowedThe claimant was the registered freehold owner of land on an industrial estate in Leicester, upon which there was a roadway used for vehicular access. The defendant owned a factory on adjoining land, separated from the claimant’s land by a fence. Employees of the defendant used an area of wasteland on the claimant’s side of the fence for parking, entering via the roadway and accessing the defendant’s premises through holes in the fence. Delivery vehicles were also parked there on occasion, during deliveries to the defendant. In December 1999, the defendant applied for registration of title to the disputed land, and for rectification of the claimant’s title, on the basis that it had obtained title by adverse possession for more than 12 years, and had further acquired a right of way by prescription over the roadway for the benefit of the disputed land. The Land Registry rejected that application on the ground that there was insufficient evidence of adverse possession. However, in March 2001, the defendant registered a caution against the claimant’s title to protect the rights that it had claimed. The claimant brought proceedings to vacate the caution on the grounds that, inter alia: (i) since the defendant had not yet been trespassing for 12 years, the claimant’s claim to the land was not time-barred; and (ii) parking by the defendant’s employees did not amount to possession by the defendant. In its counterclaim, the defendant reiterated its claims to ownership of the wasteland and to a right of way over the road, and, alternatively, claimed to have acquired an easement of parking. Held: The claim was allowed and the counterclaim dismissed. 1. The defendant’s claim to have acquired title to the wasteland by adverse possession failed because the defendant had not been in possession of the land for the necessary 12 years. The evidence showed that regular and systematic parking on the wasteland by the defendant’s employees had only occurred since the mid-1990s, and had not been a regular occurrence before that. Moreover, although regular car parking could, in some circumstances, indicate possession, that was not so on the facts of the present case: Burns v Anthony (1997) 74 P&CR D41 distinguished; Pavledes v Ryesbridge Properties Ltd (1989) 58 P&CR 459 considered. Regular parking by employees was insufficient to show either factual possession or an intention to possess on the part of the employer. Occasional parking of delivery vehicles did not change that position. Furthermore, the defendant had never sought to enclose the wasteland, or to do anything at all by way of outward indication that it regarded the land as its own: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 3 WLR 221 applied. 2. The defendant had not established an easement of parking over the wasteland. First, use of the wasteland for that purpose had not continued for the necessary 20-year period. Second, parking by employees or for the purpose of deliveries did not satisfy the requirement to show that the use of the land was “as of right”: White v Taylor (No 2) [1969] 1 Ch 160 considered. An easement could exist only for the benefit of the dominant tenement, and the personal convenience of individual employees or delivery people was not enough. More fundamentally, although an easement of parking could exist in law, that claimed by the defendant, namely a right to park an unlimited number of vehicles anywhere on the wasteland, could not, since it would render the claimant’s actual ownership of the land illusory: Copeland v Greenhalf [1952] Ch 488 and Batchelor v Marlow (No 2) [2001] EWCA Civ 1051; (2001) 82 P&CR 36 applied. 3. The defendant had acquired no right of way over the road by prescription. Its employees and delivery people would have had no cause to use the road other than for parking on the wasteland, and, in view of the findings as to the infrequent nature of such parking prior to the mid-1990s, the necessary period of use of the road had not been established. There was no evidence that the estate road had become a public right of way. Accordingly, the claimant was entitled to have the defendant’s caution vacated. Bryan McGuire (instructed by Bakewells, of Derby) appeared for the claimant; Steven Gasztowicz (instructed by Johar & Co, of Leicester) appeared for the defendant. Sally Dobson, barrister