REF/2005/1347

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

(1)   SATNAM SINGH CHANA

(2)   HARDIP SINGH CHANA

(3)   HARJINDER KAUR

 

Applicants

and

 

GURPAL KAUR VIRDI

Respondent

 

Property Address: 38 Clark Road, Wolverhampton, West Midlands

Title Number: WM116417 and SF52653

 

Before: Ann McAllister sitting as Deputy Adjudicator

Birmingham Employment Tribunal

11^th and 12^th March 2008

 

 

Representation: Mr Stenhouse of Counsel instructed by Bhakar Tomlinson appeared for the Applicants: Mr Hansen of Counsel instructed by Geoffrey T. Smith & Co appeared for the Respondent.

 

 

 

DECISION

 

Application to register benefit and burden of easement of parking – servient tenement owned in part by Respondent – whether claim by prescription and /or lost modern grant – Moncrieff v Jamieson [2007] 1 WLR 2620 – Batchelor v Marlow [2001] 1 WLR 764 – ouster - Chief Land Registrar ordered to give effect to application

 

 

 

 

 

Introduction

 

 

1.                  This is a dispute between neighbours as to whether the Applicants, who own 34 Clark Road, Wolverhampton (registered with title number SF52653) are entitled to register the benefit and burden of an easement to park over land in part owned by the Respondent, forming part of 38 Clark Road (registered with title number WM116417).

 

2.                  The Applicants applied to the Land Registry on 9 August 2004 to register the benefit of two separate and distinct car parking spaces arising by virtue of long user. Both these spaces are, for all practical purposes, in an access way (‘the Accessway’) leading from Clark Road to the north to a new development of houses to the south (‘the Back Land’). The Disputed Land is in the south east corner, immediately adjacent to fencing and to a gate which leads to the back yard of number 38 Clark Road. The other area, which is no longer in issue, is roughly half way along the Accessway, next to the wall of 40 Clark Road (‘the Second Space’).

 

3.                  Objections to the applications were made, initially, by the Respondent, Mrs Virdi, and three other parties, including David Howell Limited, the developers of the small housing estate on the Back Land. In 2003 three new properties (38A, 38B and 38C Clark Road) were built in place of what had been some 17 garages for use by various owners of properties in Clark Road. These had become largely derelict over the years, and some had been demolished. In essence, the objections were based on the assertion that the easements claimed would obstruct the right of way over the Accessway, particularly in relation to emergency vehicles. The Accessway is not registered, and it is not known who the current owner is.

 

4.                  The Applicants withdrew their application in respect of the Second Space, and all but the Respondent withdrew their objections.

 

5.                  I had the benefit of a site view on 10 March 2008, and heard evidence from a number of witnesses, as well as from two of the Applicants and the Respondent. I also had the benefit of written and oral submissions as to the implications of the recent decision of the House of Lords in Moncrieff v Jamieson [2007] 1 WLR 2620 in relation to what has been described as the ‘ouster principle’ which I will refer to in more detail below.

 

6.                  For the reasons which I set out below, I will order the Chief Land Registrar to give effect to the application so far as it relates to the Disputed Land and is so far at the Disputed Land forms part of title WM116417.

 

The Accessway

 

7.                  As I have said, the Accessway is unregistered. It is not in dispute that it is subject to express rights of way for a number of properties in Clark Road, including 36, 38 and 40 and, as I understand it, the Back Land.

 

8.                  The property register of title SF52653 (34 Clark Road) notes that by virtue of a conveyance dated 17 August 1967 the sub purchaser and those deriving title under him have the benefit of two separate easements. The first is a right to pass and repass on foot in common with the vendor and the owners for the time being of 36 and 38 Clark Road over the passage coloured yellow (this is a strip of land leading from the back of 34 Clark Road over the rear gardens of 36 and 38 to the Accessway). The second is a right ‘to pass and repass with or without motor cars and other vehicles in common with the vendors and the owners and occupiers for the time being of numbers 36 and 38 Clark Road aforesaid and all persons authorised by them and in common with all persons entitled to such user over and along the private roadway marked ‘Right of Way’ on the said plan…’

 

9.                  A similar right is noted in the register of title number WM36477 (36 Clark Road) expressed in briefer terms : ‘ a right of way over the roadway at the side leading into Clark Road.’ This property was purchased on 6 February 1975 by the Respondent’s late husband, Surjit Singh, who died in 1992. The property was transferred to the Respondent in 1993 (36 and 38 Clark Road are now used as one property).

 

10.              I have seen a copy of the conveyance dated 7 February 1978 (‘the 1978 Conveyance’) of 38 Clark Road made between Modern Homes Midlands Limited (who also granted the express rights of way referred to above in the relevant conveyances) and Gurpal Kaur (the Respondent). This conveyance is made subject to the right to gain access on foot by the owners of numbers 34 and 36 Clark Road over the passageway (the yellow land) and has the benefit of an express right of way ‘over and along the private road marked ‘Right of Road’ on the said plan as the same has hitherto been used and enjoyed so far as the Vendor has the power to grant such a right.’

 

11.              It is not in dispute that the Accessway was also used (at least at one time) by the various owners of the garages. I have seen a Statutory Declaration by Dean Andrew Warren made on 17 May 2001. He was the previous owner of the Back Land. He states that he believed that there had once been 17 garages, some since demolished, built, he believes, in the 1960s. He obtained planning permission for the erection of three dwelling houses on the site. The site was then sold to David Howell Limited who, as I have said, developed it in 2003. The Accessway was improved, as I set out below, and a gravelled area created in the south east corner, next to the fence of number 38 Clark Road. This, in effect, is the Disputed Land and is where the parking takes place.

 

 

The extent of the servient land

 

12.              There is an issue as to much of the Disputed Land falls within the title to number 38 Clark Road. The Land Registry clearly take the view that the Disputed Land falls partly within this title, and the remainder is unregistered. This view must be based on the plan attached to the 1978 Conveyance. The filed plan shows as gap between the line of the fence and the eastern boundary.

 

13.              The conveyance plan clearly shows the eastern boundary of 38 Clark Road following a curved line, so that the southern part of the land to the rear of the house is considerably wider than the northern part. The line of the fence, however, follows a straight line (albeit at an angle) southwards so that a triangle of land is outside the fence. The plan is drawn to a scale of 30’ to an inch.

 

14.              The parcel clause refers to ‘ALL THAT messuage or dwellinghouse known as Number 38 Clark Road Wolverhampton aforesaid together with the land forming the site thereof and the yard garden and appurtenances thereto belonging and for the purposes of identification only more particularly delineated on the plan annexed hereto and thereon edged pink’.

 

15.              To describe a plan for identification purposes only and yet for the plan to delineate the land has been said to be ‘mutually stultifying’. I have no doubt, however, that it is appropriate, in this case, to consider the plan: there is no other way of determining the extent of the plot conveyed.

 

16.              The decision to limit the claim to park to one space only Land only led to on order being made by the Adjudicator in March 2006 requiring the Applicant to produce a plan indicating, to the satisfaction of the Land Registry, the area over which the prescriptive claim was claimed.

 

17.              A plan had been prepared on behalf of Mr and Mrs Pugh and Mrs Gudda (who had initially objected to the applications) dated April 2005 with a scale of 1:200. This plan was also signed by Mr H Chana. It was used, it seems, to comply with the order set out above and shows, in yellow, the Disputed Land. This is an area slightly smaller than the gravelled area referred to above. There is only space to park one car on the gravelled area.

 

18.              There is nothing to suggest that this plan was drawn by reference to the 1978 Conveyance. It depicts the features on the ground. It shows the curved area which was gravelled and set apart from the remainder of the Accessway by the developers. I should also add that I am not prepared to accept that the mere fact that the developer, when developing the site, created the gravelled area, did so by reference to his interpretation of the 1978 Conveyance plan. I will deal further below with the changes to the topography of the area.

 

19.              In short, therefore, the position appears to me to be this. The curved eastern boundary of number 38 would seem, by reference to the 1978 Conveyance plan, to extend beyond the line of the fence to some extent so that at least part of the Disputed Land forms part of number 38. The Disputed Land, in my judgment, is not large enough to allow parking without at least part of the car being on the servient tenement. I agree with Mr Hansen’s submission that, so long as part of the Disputed Land falls within the title of number 38, the Respondent has locus to object to the application, however small that area may be.

 

20.              It might also have been open to the Respondent to object to any parking which interferes with her express right of way, but, on the facts of this case, the right to park on the Disputed Land does not, and could not, interfere with the right of way enjoyed by number 38 Clark Road. In any event, the application was not, at the hearing, objected to on this basis.

 

 

Topography

 

21.              The lay out of the Accessway and the land beyond it changed significantly with the development of the three houses. Prior to this, the Accessway was a rough track, leading to the overgrown Back Land. This was and is to this day the only way to this area.

 

22.              On the western, or right hand side going up, the Accessway was (and still is) bounded first by the wall of number 40 Clark Road, and then by a fence panel leading to the end of the garden of number 40. A set of double gates lead to the garden of number 40 Clark Road, more or less opposite the gates of number 38.

 

23.              On the other side, the Accessway was and is flanked by the wall of number 38, then large double gates leading to the back yard (used for parking cars, amongst other things,) and finally by a close boarded fence. This fence has, so far as I understand it, been in the same position since the Respondent purchased number 38. In other words, and notwithstanding the issue of the ownership of some of the land beyond the fence, no part of the Disputed Land has been treated as being part of number 38. This is a point which has no significance so far as the legal analysis is concerned but it does, it seems to me, have a bearing on the conclusions I should draw from the evidence I heard.

 

24.              The Back Land was closed off by a wire mesh gate. It is not entirely clear when this mesh gate was installed. It was certainly there, as the photographs show, in 2001. The evidence from the Respondent was this gate was installed in preparation for the demolition and reconstruction work. This may well be the case, although the sale of the land was in August 2002. Beyond the fence, it is common ground that the area was overgrown with bushes and trees. This is clear from a photograph I have seen, taken in July 2001. A key issue in the case is whether the overgrowth covered the Disputed Land, reducing it, as the Respondent alleges, to no more than a ‘single dirt track.’

 

25.              I have seen video footage of the wedding of Ravinder Kaur Virdi (the Respondent’s daughter) on 17 August 2002. This clearly shows that the area near the gates was to some extent overgrown, but also shows, beyond any doubt, that a car could be and was parked in the Disputed Land. Not surprisingly, given the number of guests on that occasion, the Accessway was used for parking a number of vehicles. The wedding car itself came out of the rear gates to 38 Clark Road. The footage shows a small trailer parked by the gates in the south eastern corner, and what might be some kind of rubbish bins (possibly connected with the wedding) but there is no doubt that the Accessway up to the gates to the south could be used for vehicular access to number 38 Clark Road and, beyond that, for parking. The trailer (which belonged to the Chanas) would not have, and did not, prevent this. It was attached to a vehicle which was towed away, as I explain further below.

 

26.              Photographs taken whilst the clearing of the Back Land was taking place show, clearly, that the fence at the southern end of the garden of number 40 Clark Road had been removed to allow a significant widening of the drive , and for the drive to curve to the west. At the south east corner, the fencing of number 38 Clark Road is again clearly visible, as is the trailer and a bag of what might be cement. This photographs was clearly taken when, as I say, works were about to begin.

 

27.              The whole area has now been very much improved. The Accessway is tarmaced. The Disputed Land is a gravelled area between the tarmac and the fencing to number 38 Clark Road. There is small raised edge dividing the area from the tarmac. There is a wall at the southern end of the Disputed Land. There is also a small tree in the corner which was planted by David Howell or his company. There is new fencing opposite the Disputed Land. The double gates leading to the garden of number 40 Clark Road are still there.

 

28.              I have also seen a photograph taken many years ago showing Mr Chana and two of his children, in a car, in the snow, outside the double gates leading to the garden of number 40 Clark Road. Although the car is not in the Disputed Land, it is Mr Chana’s evidence that it had come from there, and indeed this would in any event be an obvious inference. Another photograph, taken, I believe in 1996, from the yard behind number 38 Clark Road by Hardip Chana, shows a white Fiesta which belonged to Hardip Chana. Finally, I have seen a photograph dated July 2001 showing the back yard of number 38, the wire mesh fence along the Back Land, and the overgrowth. This photograph does not, in my judgment, show the overgrowth in the Disputed Land.

 

Origins of the dispute

 

29.              Mr Howell purchased the Back Land on 16 August 2002. In 2003 the land was transferred to his company. The development, it seems, began in March 2003. Discussions were held with the Respondent relating to the improvement of the Accessway. Mr Howell was anxious that there should be no rubbish on the Accessway and was prepared to gravel the Disputed Land. So far as the Respondent recalls, no measurements were taken from the 1978 Conveyance plan.

 

30.              It is also clear that there was a dispute between the builders and Mr Chana about parking on the Disputed Land. The builders or the developers told the Respondent that this was her land and that she should request them to move. It was at that point, on her evidence, that she went to solicitors and was told that she had an express right of way.

 

31.              On 10 October 2003 the Respondent’s solicitors wrote to Mr Chana in these terms:

 

‘We have been consulted by Mrs Kaur who advises that for a considerable period of time you have been parking your Volkswagon Passat motor vehicle on land which belongs to her at the rear of the property’.

 

The letter then threatened injunctive proceedings.

 

32.              This was then followed by an incident (reported in the local paper in November 2003) when Mr Chana’s car was clamped and removed by the builders (or possibly by the Virdi family) It was said that Mr Chana had been asked on a number of occasions to remove the car. The report says that Mr Chana was told by the builders that the Accessway belonged to them, but that the Respondent claimed that the Disputed Land was hers. The builders complained that their access was being blocked. Mr Chana’s evidence was that this car did not have a tax disc, and therefore had been left there for some time. This, according to his son, Satnam, was the real reason the builders and the developers objected: they were concerned as to the effect that a car in a poor condition would have on the sale of the three new properties.

 

33.              During the course of the hearing it emerged that the Applicants had first applied in October 2003 to the Land Registry to register the benefit of an easement to park generally in the Accessway. The Land Registry’s response was that such a generalised claim could not be considered an easement (relying on the authority of Central Midlands Estate v Leicester Dryers Ltd reported earlier that year).

 

34.              This first application was supported by a number of declarations, including, importantly, one made by Amanda Falagan, who gave evidence in favour of the Respondent at the hearing. It is regrettable that this document did not come to light until the second day of the hearing, when she had already given her evidence. There was no opportunity to put to her the inconsistencies between her first statement, and the evidence subsequently given, both in writing and orally.

 

35.              In her first statement Miss Falagan (who had lived at number 35 Clark Road opposite the entrance to the Accessway) stated that Mr Chana and his family had parked along the Accessway for over 17 years. In her statement in these proceedings and in her evidence at the hearing, she stated that the Disputed Land was derelict, dilapidated, overgrown with trees so as to make parking impossible. Cars did park, she said, on occasion in the Second Space but nowhere else. Had parking been possible, she would have expected more people to do so. Her evidence was that she walked up the Accessway 2 or 3 times during the period she lived at number 35 (from 1985 to 2001) but could see to the end of the Accessway from her home. The previous owners of number 40 parked in the Second Space or outside their gates.

 

36.              In view of the contrast between this evidence, and the statement prepared for the first application to the Land Registry (to which she made no mention in her oral evidence) it is difficult, in my judgment, to give any weight to any of her evidence. I do not accept the submission that her evidence given orally is consistent with the statutory declaration made earlier.

 

37.              In the event, further applications were made to the Land Registry by the Chana family, relying on a number of statutory declarations sworn in March 2004.

 

The evidence

The Applicants’ case

 

38.              I first heard evidence from Jane Foskett, whom I found to be an honest and reliable witness. She has lived at number 31 Clark Road since 1982. Her property does not look down the Accessway, but she was aware that Mr Chana and his family have, over the years, parked in the Disputed Land (and the Second Space). She confirmed that the Back Land had been overgrown for many years, but that the Accessway up to that point was clear, and the Disputed Land was used for parking on a regular and frequent basis by the Chana family.

 

39.              Simon French purchased number 40 Clark Road in 1990 but ceased living there in 1992/3 since when it has been let. He had purchased the property from his father, who had in turn bought it from a Mr Athlestone, famous, it seems, for his fuscias. It was always possible, according to Mr French, to drive up the Accessway and to go through the double gates leading to the garden, and his father and brother did so. His tenants now park in the Second Space, and also use the double gates. He stated that he had seen the Chana family parking in the Disputed Land.

 

40.              Mr French’s evidence was, on some points, a little confused (as to when he left the property, for example) and I suspect that he may not visit as often as he stated. In reality his evidence is limited to a two or three year period, between 1990 and 1992 or 1993 (as the case may be). But I accept his evidence that, during the period he was there, and on occasions since then, he has seen cars owned by the Chana family parked on the Disputed Land.

 

41.              Another neighbour, Mr Madison, lived at number 32 Clark Road from 1995 to 2001, but has maintained contact with the Chana family. He also confirmed that the Back Land was overgrown, but that it was possible to park on the Disputed Land. His evidence, which I entirely accept, was that he saw a car parked there most days in the 15 or 16 years he lived there. He used to walk his dog up the Accessway. He said, as did Mr French, that he sometimes saw members of the Chana family cutting back the grass on the Accessway with a strimmer.

 

42.              Mr Pritam Singh Chana bought 34 Clark Road in 1972 and lived there with his wife and three children (Satnam, Hardip and Parvinder), with the exception of one period when the family moved out to allow 34 Clark Road to be renovated, until they moved out some 3 ago, since when the property has been let. He has retained the shed at the back which is used for storage of various materials, so that the Accessway and the Disputed Land are still used. The renovation work was carried out by Mr Chana, who continued to use the Disputed Land for parking his vehicle.

 

43.              His evidence, which I accept, is that he (and in due course his children) parked on the Disputed Land, and have done so since 1972. This space is closest to their back garden, and their kitchen. They also parked, but less often, in the Second Space. He kept the land clear for that purpose. He has had a number of vehicles over the years, including a transit van. There were no problems with, and no complaints by, the Respondent, until, as he put it, she took sides with the builders. It is his case that the builders built a new wall at the back of her property for her benefit. Indeed, it is clear from the video of the wedding that the two families were close friends.

 

44.              Two of the Applicants, Satnam and Hardip Chana also gave evidence. They too said that they have been parking in the Disputed Land since they both passed their driving test (in 1994 and 1999 respectively), allowing for times when they were away studying. They also kept the area clear enough to allow parking. Again, I accept their evidence.

 

The Respondent’s evidence

 

45.              I heard from Manjit Singh Virdi and the Respondent. I have already dealt with the evidence of Amanda Falagan above. (I attach no weight to the witness statement of the two witnesses, Mr Pedley for the Applicants and Mr Varrechiane for the Respondents, who did not attend).

 

46.              Manjit is the Respondent’s son. He lived at 38 Clark Road until 2004. His evidence is that it was not possible for the Disputed Land to be used for parking prior to the works to the Accessway because it was both too narrow and too overgrown. Parking began, on his case, in August 2003.

 

47.              As to the state of the Accessway prior to the works, his case is that it very much more overgrown beyond the gates leading to number 38 and that it had already been much improved by the time of the wedding in August 2002. I fully accept that the Accessway was improved by the developers: I do not, however, accept the evidence that it was simply not possible to park on the Disputed Land prior to this. Nor do I accept that the Disputed Land was somehow raised, making it harder to park.

 

48.              Manjit accepts that it was possible to park elsewhere in the Accessway prior to the works, and indeed this was also accepted by the Respondent. But, as I say, I do not accept that the Disputed Land could not be used for parking. The letter sent in October 1993 refers to parking on that land ‘for a considerable period of time’.

 

49.              His evidence was that he requested the builders to create the gravelled area. This may well be right. He was not able to say, however, how the decision was made to gravel that particular space. He was not able to say where his mother’s land extended to. No survey was carried out. He had no idea why the gravelled area was given the shape it now has. He could not recall whether the 1978 Conveyance was located before or after the gravelling took place.

 

50.              The Respondent’s evidence was also that there was no regular parking because of the condition of the Accessway. Her evidence is that whilst it was possible to park in the middle of the Accessway for short periods of time (and the Chanas did so) the condition of the Accessway beyond her gates was so bad that no parking could take place: the area was covered in shrubs, bushes, dirt and little trees. As I have already stated, I do not believe that parking could not or did not take place.

 

51.              The Respondent also confirmed that she could not say how much of the Disputed Land belongs to her: she believes it is a sort of triangle. She recalls discussions with the builders: they wanted the land tidied up, and were prepared to gravel it or cover it with flowers. Asked how she knew where the gravel should go, she answered that this was by reference to the deeds which, she says, she showed to the developers.

 

Conclusions on the evidence

 

52.              Where the evidence of the Respondents conflicts with that of the Applicants, I prefer that of the Applicants. I am re-enforced in this by the fact that the Disputed Land is clearly an obvious place to park.

 

53.              Since the Applicants had an express right of way over the back of number 36 and 38 to gain access to their property, it makes sense that they should park there, away from the street, in a safe area. This did not prevent anyone gaining access to the Back Land (to the extent that anyone did) and did not prevent the Respondents from gaining access to and from the yard of number 38 Clark Road through the double gates. The Accessway was, undoubtedly, sufficiently wide and sufficiently passable for cars going to number 38 and number 40 and, no doubt, on occasion at least, to the Back Land. It would be extraordinary if the area in dispute was so overgrown that it could not be used, either by clearing the overgrowth or simply by the fact of driving over it.

 

54.              The dispute was occasioned, it seems to me, by the prolonged parking of one vehicle in this area at the time when the developers were very anxious to improve the overall lay out of the Accessway. In my judgment it was only at this stage (and possibly even after the gravelling of the land took place) that Mrs Virdi realised that she might own some part of the land to the east of her fence. Manjit stated that he did not believe the matter would go this far, and I suspect there may well be some truth in that. Positions, and recollections, have become more entrenched since the original dispute.

 

55.              I find that the Chana family have parked on the Disputed Land since 1972. This parking was not interrupted nor did it cease during the period when number 34 Clark Road was being renovated. There was no break in the continuity of the user which, I find, continues to this day.

 

56.              I am satisfied that the user, over the last 20 years, was sufficient to carry to the mind of the reasonable person in possession of the servient tenement that a continous right was being asserted. Parking was not merely accidental or occasional. There has been no interruption within the meaning of section 4 of the Prescription Act 1832.

 

57.              In any event, the claim by prescription can arise, in addition to the provisions of the 1832 Act, under the doctrine of lost modern grant, for which it is sufficient if it can be shown that there was a period of 20 years during which the right was enjoyed even if this does not continue down to the time when the action is brought. In this case, as I have found, the right began to be enjoyed in 1972 and was accordingly established by 1992.

 

Legal principles

 

58.              Any residual doubt as to whether a right to park can exist as an easement has been finally put to rest by the House of Lords decision in Moncrieff v Jamieson: see, per Lord Scott, at paragraph 47, per Lord Rodger at paragraph 75, and the speech of Lord Neuberger.

 

59.              In Moncrieff v Jamieson the issue was whether, in the particular and unusual circumstances of that case, a right to park ancillary to an express right of way had been granted. Mr Stenhouse has sought to argue, in the present case, that the right to park, if not established by prescription, is ancillary to the express right of way over the Accessway. I do not agree. It is not essential nor indeed necessary for the comfortable use and enjoyment of the right of way (over land not owned by Mrs Virdi) that there should be a right to park on the Disputed Land. It is possible to park on Clark Road. It has clearly been possible to park on other parts of the Accessway. It is also possible to enjoy the right of way by driving to and from the gates to number 38 (leading to the express pedestrian right of way) so as to allow time to stop and unload, without the need for the additional right to park.

 

60.              In any event, the point is of perhaps academic interest since, as I have said, I am satisfied that the Applicant has established a prescriptive right.

 

61.              The real issue in this case is whether the right claimed is so extensive as to prevent the servient owner from possession or control of the land: that is to say, whether, on the facts, the ‘outster principle’ is engaged.

 

62.              I start by saying that, although it may be correct to say that the speeches in the Moncrieff case are obiter on this point, they are nonetheless a compelling and authoritative analysis of the law in this area, and that earlier cases must be read in the light of this decision. Lord Hope (at paragraphs 23 and 24) cites examples of rights of drove and of pasturage, in addition to cases of drainage and aqueduct, as illustrations of the proposition that the fact that the servient owner is excluded from his property is not necessarily inimical to the existence of a servitude.

 

63.              Lord Scott stated (at paragraph 47) that if the nature of the easement were to place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control, he would find it difficult to accept that the right could be an easement. The point is considered more fully at paragraphs 54 to 61. Specifically, Lord Scott stated that the test set out in Batchelor v Marlow [2003] 1 WLR 764 (namely whether or not the servient owner is left with any ‘reasonable use’ of the land) needs to be qualified. The test to be substituted is whether or not the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land. On the facts he held that the ‘ouster’ principle was inapplicable even though the use that the servient owner could make of the ‘pink land’ if two cars were parked there was very limited. But the claimants were entitled to park there, and the dominant owner could do what they liked so long as they did not interfere with the right to park.

 

64.              Lord Rodger considered the point, and gave various examples where the law recognises that an easement will deprive the servient owner of use of the land, at paragraph 76. Lord Neuberger dealt with the point at paragraph 140. He stated that he was not satisfied that a right is prevented from being an easement simply because the right granted would involve the servient owner being effectively excluded from the property. Having said that he saw considerable force in the views expressed by Lord Scott he then stated that, unless it was necessary to decide the point to dispose of the appeal, he considered it dangerous to try and identify the degree of ouster required to disqualify a right from being an easement.

 

65.              Mr Hansen argues that the Disputed Land , if used for parking, will deprive the servient owner of any use or any control of the land. So long as the right to park is exercised (and is exercised to the exclusion of any parking by the Respondents) then, whatever test is used, the user falls on what has been described as an ‘ill defined line’ (see Hair v Gillman [2000] 3 EGLR 74) It is highly relevant, he says, that the gravelled area is large enough only for one car.

 

66.              Mr Stenhouse, on the other hand, says that the law has been changed by Moncrieff v Jamieson so that the test of ouster, though ‘still in play’, has been modified and, in effect, weakened. I agree with this analysis. It seems to me plain that the strict approach adopted in Batchelor v Marlow [2001] 1 WLR 764, is no longer good law. The ouster principle did not apply to the facts of Moncrieff. I agree that the relevant test is control and possession. All easements necessarily involve a restriction on the rights of the servient owners to a lesser or greater degree. If it is possible to have an easement of drainage, or the right to use a shed for storage, it is hard to see why, in principle, it should not be possible to park in a defined area. The Respondent retains both control and possession, subject only to the right to park. This is not a right to use the land for any other purpose, and it is inherent in the concept of a right to park that vehicles will be moved and will not be stored on the land. I should also add that even if the correct test is one of user, rather than possession or control, in my judgment, on the facts of this case, the ‘ouster’ principle does not apply.

 

67.              It seems to me relevant, too, that only a part of the Disputed Land belongs to Mrs Virdi. She is able to use that part by maintaining it, dealing with it as an owner. So, for instance, she can grow a plant or trellis close to the fence (so long as it does not prevent parking); she could place bicycles on this land; she could alter the surface, replace and repaint the fencing, and so on.

 

Conclusion

 

68.              For all the reasons given above I will order the Chief Land Registrar to give effect to the application dated 9 August 2004 so far as it relates to the land tinted yellow on the plan attached to the AP1 in the south eastern corner of the Accessway, and in so far as the this land forms part of the title of number WM116417. In so far as this can be done, I will also order that the benefit of the easement over the remainder of the Disputed Land (the part that is unregistered) be noted for the benefit of title SF52653

 

69.              As for costs, it seems to me, subject to any representations made by the Respondent, that the Applicants are entitled to their costs. I only have jurisdiction to award costs from the date of the reference (24 August 2005). A schedule in form N260 or to like effect is to be filed and served by 2 May 2008. The Respondent may then respond by 23 May 2008. If so advised, the Applicants may reply by 6 June 2008. At that point, I will consider what order, if any, to make. Either party may ask for the costs to be dealt with by way of a detailed assessment, in which case the matter will be deal with by a Costs Judge and not by me.

 

 

BY ORDER OF THE ADJUDICATOR

 

 

ANN McALLISTER

 

Dated this 11^th day of April 2008