Use of land for car parking and recreational activities — Conveyance — Whether easement arising under section 62(1) of Law of Property Act 1925 — Whether uses claimed capable of grant as easement
The second defendant operated an education centre at premises that it occupied under a five-year lease granted by the claimant council. The premises adjoined a large open space, also owned by the claimants, that was used as a playing field by a nearby school. The second defendant used an area of the field for a variety of outdoor activities, including sports, music and drama, fireworks parties and recreational activities such as barbeques, camping and caravanning. It also used the land for car parking. The claimants subsequently conveyed the freehold of the premises to the first defendant, although the second defendant continued to operate them as an education establishment.
The second defendant subsequently removed an area of turf on part of the field, beyond the area where cars were normally parked, replaced it with gravel, and erected an earth bund around the gravelled area. The claimants objected, and applied for an injunction restraining the defendants from using the land for parking or for sports or recreational activities. The defendants maintained that the claimants had allowed such uses and that, upon the conveyance to the first defendant, that permission had crystallised into a legal easement by virtue of section 2(1) of the Law of Property Act 1925. The claimants argued that the extent of the second defendant’s use was so intensive and extensive as to be inconsistent with a right by way of easement. They further contended that the defendants’ uses of the field, apart from car parking, consisted only of recreational activities, and that a claim of general recreation was incapable of grant as an easement. Preliminary issues were tried as to whether the rights claimed could exist in law and, more particularly, whether they could exist in the circumstances of the case.
Held: The preliminary issue was determined in favour of the defendants.
(1) The defendants’ parking use was not such as to deprive the claimants of the use of their own land. There was no claim to, or practical effect of, exclusive use of the relevant part of the field, still less the playing field as a whole. The permission to park exercised during the lease could be the subject of a grant and had been crystallised into an easement to park: Wright v Macadam [1949] KB 744 and Copeland v Greenhalf [1952] Ch 488 considered.
(2) The defendants’ various uses were within the class of uses that were capable of being the subject of a grant of an easement, and were not so intensive and extensive as to preclude the claimants from any sensible use of the land: Re Ellenborough Park [1956] Ch 131 and City Developments Pty Ltd v Registrar-General of the Northern Territory (2000) 156 Fed LR 1 applied; Copeland distinguished.
Simon Birks (instructed by the legal department of Hertfordshire County Council) appeared for the claimants; Christopher Pymont QC (instructed by Stephenson Harwood) appeared for the defendants.
Sally Dobson, barrister
