Easements — Acquisition — Prescription — Parking and storage of vehicles –– Whether use without planning permission precludes prescriptive claim –– Whether easement to park and to store vehicles –– Claim under section 62 of Law of Property Act 1925 –– Change of use of dominant land –– Whether excessive use of rights of way
The claimant was the owner of land consisting of a partly unmade-up road; the central strip, but not the side strips, was subject to public rights of way. The defendants, who owned a car repair business on premises nearby, claimed an easement by prescription to park and store cars on part of one of the side strips (the pink land) based upon use since 1970. In 1993 the defendants purchased an additional property, an ex–mission hall, that adjoined the pink land, and began to it use in connection with their business. They claimed rights of way on foot and with vehicles over the pink land to the mission hall, either under section 62 of the Law of Property Act 1925 or under the rule in Wheeldon v Burrows. The claimant contended that the right to store vehicles, and the exclusive right to park vehicles, were too extensive to be recognised as easements, and that, as the parking and storage use was without planning permission, a prescriptive easement could not be established based upon a use or activity that was unlawful.
Held: The defendants had established limited rights of way over part of the pink land as access to the mission hall under section 62 of the 1925 Act. However, the rights allowed only a certain level of permitted use consistent with the level of use of the mission hall for mission hall purposes; the defendants’ use in connection with their business was excessive. The defendants also had rights, acquired by prescription, to park up to six cars on part of the pink land in connection with their garage property; in this respect the mission hall was not part of the dominant tenement. The question of planning control, and lack of planning permission, was not relevant, as no enforcement notice had been served in respect of the parking use.
The following cases are referred to in this report.
A-G of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599
Copeland v Greenhalf [1952] Ch 488; (1952) 1 TLR 786; [1952] 1 All ER 809
Grigsby v Melville [1972] 1 WLR 1355; [1973] 1 All ER 385; (1972) 24 P&CR 191, Ch
Hair v Gillman (2000) 80 P&CR 108; [2000] 3 EGLR 74; [2000] 48 EG 117
Handel v St Stephens Close [1994] 1 EGLR 70; [1994] 05 EG 159
Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14
International Tea Stores Co v Hobbs [1903] 2 Ch 165
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278; [1993] 1 All ER 307, Ch
Miller v Emcer Products Ltd [1956] Ch 304; [1956] 2 WLR 267; [1956] 1 All ER 237, CA
Mills v Silver [1991] Ch 271; [1991] 2 WLR 324; [1991] 1 All ER 449; (1990) 61 P&CR 366, CA
Neaverson v Peterborough Rural District Council [1902] 1 Ch 557
Newman v Jones unreported 22 March 1982
Philpot v Bath (1905) 21 TLR 634
Wheeldon v Burrows (1879) 12 ChD 31
Wright v Macadam [1949] 2 KB 744; [1949] 2 All ER 565, CA
This was the hearing of an application by the claimant, William Batchelor, for a declaration and removal of a caution in proceedings against the defendants, Peter Robert Marlow and Patricia June Marlow.
Bridget Williamson (instructed by Penningtons, of Newbury) appeared for the claimant; Mark West (instructed by WH Matthews, of Kingston) appeared for the defendants.
Giving judgment, MR NICHOLAS WARREN QC said:
Introduction
The claimant in this case is the owner of certain land in Sutton, Surrey. The defendants (Mr and Mrs Marlow) claim to be entitled to certain easements over part of that land, in respect of which Mr Marlow has registered a caution against first registration. The claimant seeks removal or cancellation of the caution. He also seeks a declaration that neither the defendants nor persons authorised by them are entitled to park on the land concerned. He also seeks a declaration as to the extent of a right of way that the defendants are entitled to over part of the land, as access to a property known as the mission hall, of which the defendants are now the registered proprietors. The extent of the defendants’ rights, if any, is important to the claimant, as the land concerned features in a proposed development in which the claimant, with others, is involved.
Physical location
There are a number of areas that I should identify:
1. 41 Morland Road: these are garage premises from where Mr Marlow and, later, Mrs Marlow have carried on business servicing and repairing motor cars.
2. Morland Road, at its east end, runs into Alfred Road (which runs north/south): 41 Morland Road is on the north side of the road at the junction with Alfred Road.
3. At its south end, at a not very great distance from Morland Road, Alfred Road ends and runs into Albert Road, which runs east from where they meet. At the west end of Albert Road is the side wall of the property, 56 Morland Road, belonging to a Mr Thomas (whose evidence I consider later).
4. Albert Road is, at the west end, not metalled and has not been adopted. The road is privately owned, but there is a public right of way along it. The public right of way does not extend to the whole width of the road. To both the north and the south of the dirt track that represents the width of the public right, there are strips of land that, it is accepted on both sides, are not part of the public right of way. There is a similar strip of land running north/south at the western end of Albert Road. Thus, proceeding west along Albert Road, the public right of way turns right (north) as Albert Road ends and Alfred Road begins. On the left, the strip of land runs turns the corner too.
5. To the south of Albert Road –– that is to say, to the south of the strip of land that is not part of the public highway –– and between it and the railway embankment that runs parallel to Albert Road, is the
6. Until its purchase in 1994 by the Marlows, the mission hall site was owned by the trustees of the Clifton Hall Trust and the building on it was used for religious worship. The mission hall site was surrounded by fences or hedges. Access was through a gate on the north boundary, over the narrow strip of land to the public highway running over Albert Road.
7. Mr and Mrs Marlow claim to have established prescriptive parking rights over part of the strip of land that I have mentioned above; it includes the strip at the west end of Albert Road and part of the strip to the south of the public right of way running eastwards. The area over which the parking easement is claimed was eventually identified on behalf of the Marlows as (and I will refer to as) the pink land, as shown on a plan: it runs the length of the north boundary of the mission hall site and, beyond it, by a distance of about half that length again. The plan (taken from the Ordnance Survey) shows, on both sides of Albert Road, dotted lines that represent physical features on the ground. It is accepted by both sides that: (a) the public right of way is narrower than the area between the dotted lines; and (b) the pink land forms the area south of the public right of way and does not encroach onto the public right of way (although it does extend towards the middle of the road from the dotted lines).
8. Finally, I should mention that opposite the mission hall site lives Mrs Reyes, who gave evidence: she lives on the corner of Alfred Road and Albert Road, her address being 16A Alfred Road.
Evidence
The following facts are uncontroversial.
The mission hall site had, since about 1964 or 1965, been used as a place of worship by the Clifton Hall Fellowship. It held, initially, under a lease or series of leases from British Railways Board, which was the owner of that site and the adjoining land, including Albert Road. The trustees of the Clifton Hall Trust acquired the freehold on 17 August 1984. The leases and the transfer contained no express grant of any rights of way over any part of Albert Road, and, in particular, the strip of land between the mission hall site and the public right of way over Albert Road.
Mr and Mrs Marlow purchased the mission hall site from the trustees at the end of 1993, being registered as proprietors in January 1994 following a transfer dated 30 November 1993.
Access to the mission hall site, from 1964 until the mission hall ceased to be used for religious services and the site was sold, was pedestrian and car access for the purposes of the mission hall as a place of worship. Cars –– at this stage I say nothing about the number –– were parked within the site at the time of services. Members of the fellowship sometimes parked on the site at other times. Access was also available to a gardener, who would come with a mowing machine to keep the grass under control.
I heard evidence from Mr Batchelor and Mr Marlow, from a number of local residents (Mr Thomas, Mrs Reyes, Mr Sinclair, Mrs Woolley and Mr Gunning), as well as from Mr Ridewood and Mr Knappett (brethren of the fellowship), Mr Ellis (a planning consultant working for the local authority), Mr Eddis (Mr Batchelor’s solicitor) and Mr Wilson (who carries out MoT tests for the Marlows’ customers). My attention was also drawn to statutory declarations, relating to the use over the years of the pink land, sworn by Mr Gallon (another local resident) and by Mr Harding (another of the brethren). I can dispose of Mr Batchelor’s evidence immediately. He came on the scene late in the day, and the matters of which he could speak directly do not assist me in deciding what rights the Marlows might have obtained. The matters in respect of which he can speak indirectly are dealt with in the undisputed documents or directly by the witnesses.
I need to deal at some length with what Mr Marlow has, at various times, had to say about parking.
On 18 December 1990 Mr Marlow made a statutory declaration in support of his application to register a caution against first registration. He claims that he had:
In excess of 20 years regularly parked in the region of 18 cars each day on the area of land shaded yellow on the plan annexed to the foregoing caution…
Unfortunately, the plan is not available, but the position is explained by Mr Marlow’s solicitors in a letter dated 28 August 1997 to Croydon District Land Registry by reference to the plan that I have referred to at para 7 above. They wrote:
When Mr Marlow lodged his caution against first registration in 1990, he claimed rights over part of the land coloured yellow on the appended plan, but in fact the whole of the roadway was erroneously coloured pink. We should make it clear that the Marlows claim a right of way (both vehicular and over the whole of Alfred Road which is coloured yellow of the accompanying plan), but they only claim parking rights over the part of Alfred Road [clearly that should be Albert Road in each case] which is coloured pink on the accompanying plan.
This explains what it is that the Marlows then claimed, although it does not specify the number of cars: that was only identified in the course of the current proceedings, the exclusive right to park up to eight cars being claimed.
As to parking, in an affidavit sworn on 8 January 1999, Mr Marlow states that, since 1970, he and his wife had parked “up to 18 vehicles along the side of Albert Road including on the pink land”, and that since the acquisition of the mission hall site “we have continued to park up to 8 vehicles on the pink land; most of the cars are either owned by us or are the cars of customers which are in our possession pending repairs”. He refers also to the ability to park cars on the pink land as an integral part of his garage business. He denies that the pink land has been used as a general free-for-all so far as parking is concerned.
He says that his parking on the pink land has been “effectively to the exclusion of all other vehicles” and that the pink land has always been “treated as being an integral part of our business by locals…”. In this context, he refers to “the odd occasion when an interloper parked on our patch”. The result was that a local builder would forklift them onto the yellow lines (ie the parking control lines) “which instantly deterred interlopers from parking on our patch”.
Mr Marlow’s witness statement dated 19 August 1999 is to much the same effect. He expands on the use made of the pink land, explaining that, over the years, he has purchased vehicles that have failed their MoT test and has carried out work to restore them. He states:
All of the vehicles that are purchased for the purposes of restoration are parked on the pink land and have been ever since I started the garage in 1980.
Mr Marlow also explains other parking uses of the pink land. First, he occasionally purchased vehicles to customers’ order. The vehicle would then be parked on the pink land pending presale checks and necessary restoration work. Second, customers bringing in vehicles for servicing would park on the pink land, and the vehicles would be left there for collection.
Mr Marlow describes the extent of the pink land. He says:
The piece of land that runs in front of 71 Albert Road [the mission hall site] has always, since 1970, been treated as the customers’ car park where vehicles are dropped off and picked up. The piece of the pink land that continues from the end of the frontage of 71 Albert Road further into Albert Road is where we park vehicles that we are restoring or have purchased for customers and we have done so since 1970.
The reduction in the claim from the right to park 18 cars to eight cars is explained by Mr Marlow on the basis that, since acquisition of the mission hall site, the need for parking on Albert Road reduced.
In cross–examination, Mr Marlow accepted that there were not eight vehicles on the pink land every day. He did not accept that anybody else ever parked on the pink land during his working hours. He said that other people did park on the pink land at other times –– evenings and weekends –– in particular, worshippers at the mission hall, who had regular weekend and evening services. He asserted that parking in connection with his business took place over all of the pink land, including in front of the gates to the mission hall, but that cars would always be moved if visitors to the mission hall wanted to gain access. In this context, some of the brethren would use the mission hall site to
Mr Marlow at one point suggested that he did not use the pink land for parking at all outside his business hours. But he had to acknowledge that that was not correct. In particular: (a) customers sometimes delivered cars for service in the evening, leaving them parked overnight; although Mr Marlow says this was discouraged, it was sufficiently regular for him to have placed a sign on his garage premises door asking for consideration for neighbours in parking “before depositing your keys”; and (b) failed MoT purchases awaiting renovation were stored on the part of the pink land described in para 7 above.
Mr Marlow says that he and his wife have never claimed ownership of, or asserted ownership rights over, the pink land or any other part of Albert Road. They have only ever asserted rights to park (including the right to keep on the pink land vehicles –– which may be untaxed and uninsured –– awaiting renovation).
In this context, the erection of posts between the pink land and the public right of way, and on the other side of Albert Road, in 1994 were not, he said, an assertion of ownership, but were, as I understood his evidence, inserted to prevent the road being blocked and causing a problem for fire–brigade access. On one point of detail, he said that Mrs Reyes was approached about the insertion of the bollards, a matter that she disputes.
Further, Mr Marlow, in cross–examination, seemed to accept that if other people had wanted to park on the pink land, and if there was space available, he would not be entitled to prevent them doing so. He did, however, say that that had never happened, so the question of exclusivity was never put to the test.
Prior to the acquisition of the mission hall site by the Marlows, cars were parked by them parallel to the line of Albert Road. Once they had acquired the mission hall site and removed the boundary fence and hedge, cars were parked at right angles to the line of the road, so that they were partly on the pink land and partly on the mission hall site.
I deal briefly with the evidence of the other witnesses.
The evidence of Mr Thomas (one of the local residents who gave evidence) on parking was to a rather different effect. He disputes that the Marlows ever parked 18 cars on Albert Road, saying that there was simply a free–for–all for parking. He says also that it is only since 1993 that the Marlows have asserted an exclusive right to park over the pink land. In particular, it was from then that the Marlows started to store “wrecks”, as he described them, which he put down to an attempt to colonise the land. He states that there were never more than three cars parked within the mission hall site.
Mrs Reyes (another of the local residents who gave evidence) acknowledged that she has no direct knowledge of the area in question prior to 1991. Although she was away at work from 8.00am to 6.00pm, she was adamant that the pink land was used for parking by people other than the Marlows and their customers. She considered that “everyone” parked there, by which she meant that anyone was free to park there. She said that commuters parked there. She said that there has always, during her time, been regular dropping off and collection of cars by the Marlows’ customers outside their working hours, both in the evenings and at the weekends. Breakdown lorries sometimes, although not frequently, delivered vehicles to the pink land out of normal business hours. She also says that cars are left on the pink land for months on end without moving.
In para 4 of her witness statement, Mrs Reyes relates an approach made to her by Mrs Marlow concerning the Marlows’ proposals for the erection of a new building on the mission hall site. The details do not matter for present purposes, but it is important to note that, according to Mrs Reyes, Mrs Marlow hinted to her that the Marlows owned the area between the mission hall site and the Reyes’ own property (ie part of Albert Road itself).
Mr Sinclair was able to say from his own knowledge that he put his own car on the pink land as a customer of the Marlows delivering his car for service. He saw Mr Marlow and his staff at the pink land and was clear that some at least of the vehicles were the Marlows’ or their customers’. He saw cars on the pink land at weekends, but was unable to say who they belonged to.
Mrs Woolley was able to give evidence going back many years from the time when the Marlows acquired 41 Morland Road in 1970. She was clear that there had been parking on the pink land ever since, and that it was “mainly” by the Marlows and their customers. She remembers the cars being parked, then switched around to be worked on in the garage. She said that there was some residents’ parking. In the evenings and weekends, she described the pink land as “mainly clear”, saying that, on occasions, there were a few cars. Mrs Woolley has not, however, been recently resident locally, but she has, throughout the period, visited her mother locally at least once a week, in the evenings or at weekends.
Mr Gunning has lived locally since 1967. He has been a customer of the Marlows for many years and would park his car on the pink land. He would usually collect it from there in the evening after it had been worked on. He said that he “quite frequently” saw Mr Marlow or his staff moving cars to or from the pink land even before they acquired the mission hall site –– although it was not clear what “quite frequently” meant. He also stated that he regarded the pink land as a place where people put their cars and the Marlows stored cars in relation to their garage business. In referring to people, he did not, as I understand his evidence, mean simply customers of the Marlows, but rather meant people generally.
Mr Ridewood was a regular worshipper at the mission hall and one of the trustees of the Clifton Hall Trust. He visited regularly on Mondays, Fridays and Sundays, and sometimes on Saturdays. The mission hall site was available for parking for brethren at service times, and at other times if they wished to use it. Mr Ridewood was confident that the Marlows had regularly parked vehicles on the pink land.
Mr Knappett was another of the trustees of the Clifton Hall Trust and regularly worshipped at the mission hall. His recollection is that there were always cars parked on the pink land and that the Marlows parked there from the commencement of their garage business. As the garage got bigger, they parked more cars there. And some old cars were left there for years without being moved. Mr Knappett says that when the Marlows’ cars were parked across the gates, they would move them on request. But sometimes other cars were there that he assumed were commuters’ cars: notices would be placed on the windscreen, but the cars would not be moved by the persons wishing to gain access.
Both Mr Ridewood and Mr Knappett make plain that there was vehicular access to the mission hall site, but I have no evidence from them about the number of cars that would be parked within the site at the time of services in the mission hall.
None of the witnesses, other than Mr Marlow, gave any evidence about the number of vehicles on the pink land at any particular time, or whether the Marlows’ use during their business hours meant that space was not available to anybody else; save that Mrs Woolley says that commuters and others did park on the pink land, and Mr Thomas says that the exclusive parking claim only arose after 1993.
Mr Wilson’s company carries out MoT tests for the Marlows’ customers, the Marlows not having, themselves, a testing facility. He says that he has been collecting and returning cars from and to the pink land on an almost daily basis since the Marlows started business in 1970.
Mr Ellis produces, as part of his evidence, a report from the Planning Inspectorate dated 18 March 1999. This relates to seven appeals by the Marlows, variously in respect of enforcement notices and refusals to grant certificates of lawful development in relation to various parcels of land at Albert Road. Certain of the appeals relate to the mission hall site and are not of relevance to the present case. One relates to an enforcement notice concerning the storage of vehicles on three parcels of land. Those parcels include the pink land, and another relates to a lawful development certificate in relation to the “parking of motor
Leaving aside Mr Marlow and Mr Thomas, whom I shall consider separately, all the other witnesses I have mentioned were clearly doing their best to assist. Their evidence was all consistent only with there having been some use of the pink land by the Marlows, but they are really of no real assistance in relation to the precise extent of the use made by the Marlows of the pink land, either in relation to the number of vehicles either parked or stored, or in relation to the positioning of vehicles left long–term on the land awaiting repair. There is not any inconsistency that I can detect in the evidence of these witnesses. I should add here that I accept what Mrs Reyes says in para 4 of her witness statement (see above).
Mr Thomas clearly holds a considerable amount of animus for the Marlows. He may feel that he has good grounds for that. I certainly do not need to decide whether he is justified, and it does not follow that, because of his perception of the Marlows, he is untruthful. Having said that, Mr Thomas’ recollection of the use made by the Marlows of the pink land is so different from all of the other witnesses that I cannot accept his view that the pink land was a free–for–all for parking, as he suggests. Indeed, in cross–examination, he took an extreme view that nobody at all parked on the pink land except a man called David Hearne: this was clearly complete nonsense. Mr Thomas also asserted that the Marlows had no need to park in the early days of their business, as they had no work and were struggling. There is not a shred of evidence of that, and it is denied by Mr Marlow. In the light of this, and other aspects of his evidence, I am willing to accept what he says only where it is corroborated by other evidence.
However, I am also unwilling to accept everything that Mr Marlow says without qualification. For instance, Mr Marlow, at one point in his oral evidence, appeared keen to show that the pink land was used only for parking during business hours, and that it was only occasionally that vehicles were left overnight or over the weekend; and, in that context, he suggested that it was only occasionally that cars were delivered by customers on the evening for work the next day, and not at all over the weekend. But he accepted that MoT failures might be sitting around for a considerable time.
Further, although nothing probably turns on this, I cannot accept what he says about the bollards installed, viz that it was because the fire brigade complained about double parking on the corner. That would not account for the extent of the bollarding installed. It was not mentioned in the correspondence with the local authority that led to the removal of the bollards. It seems much more likely to me that the Marlows were, at that time, attempting to assert ownership over the whole width of Albert Road opposite the mission hall site following its acquisition, and were attempting to exclude all other persons from using any part of it apart from the area of the public right of way. That is consistent with: (a) the impression given to Mrs Reyes concerning ownership of Albert Road; (b) the acquiescence, to put it at its lowest, in fork–lifting vehicles off the pink land onto the public right of way; and (c) with Mr Thomas’ perception of how the Marlows viewed their position.
In the light of all the evidence, I make the following findings of fact:
The facts set out at p120 D-E above.
The mission hall site was initially held by the trustees of the Clifton Hall Trust as lessees; the trustees acquired the freehold interest and were registered as proprietors on 19 September 1984. No right of way over any part of Albert Road was expressly granted to the trustees at any stage.
From 1970, the Marlows parked vehicles in Albert Road. I use parking in this context in the sense of the temporary parking of roadworthy vehicles or vehicles in the custody of the Marlows for immediate repair. This is to be contrasted with storage, which I use to describe the placing on the land of unroadworthy vehicles awaiting scrapping or renovation, and long–term parking. This parking took place during the Marlows’ ordinary business hours on Mondays to Fridays.
There is very little evidence of where, apart from the pink land, parking by the Marlows took place, although some parking would appear to have taken place opposite the pink land outside Mrs Reyes’ house, and also further along Albert Road from the pink land, but on the same side. However, the thrust of Mr Marlow’s evidence concerning the pink land was that during the entire period from 1970, he had parked or stored up to eight cars on it, the most that there was room for. His evidence was not simply that 18 cars were parked or stored somewhere in Albert Road, so that, if space were not available on the pink land because strangers were already there, he would park elsewhere. Rather, I infer from the totality of the evidence that it was the pink land that was the primary area used. I accept his evidence on that, subject to this important qualification: the use of the pink land in relation to eight vehicles included the storage of vehicles referred to in p122H below.
From time to time, third parties, such as commuters, may have parked on the pink land even during the Marlow’s business hours. There is nothing to suggest that this parking was other than occasional and casual, or that it was with the consent of British Railways Board (the owner of the land). There is no material upon which I can make any further assessment of the extent of such parking.
From 1970 onwards, the Marlows also used part of the pink land for the storage, or long–term parking, of vehicles. Mr Marlow said, and I accept what he says this far, that cars awaiting renovation or breaking up were placed on that part of the pink land extending east past the frontage of the mission hall site. I am satisfied, on the totality of the evidence, that the Marlows also used the other parts of the pink land in connection with their business for parking (in contrast with storing) vehicles, and that they have done so since 1970. I am not satisfied on the evidence that storage of vehicles took place on the pink land other than as just described.
Clearly, when cars were actually stored, the use of the pink land lasted 24 hours per day. As to parking, prior to the acquisition by the Marlows of the mission hall site, I am satisfied on the evidence that, in the main part, parking took place only during working hours. It is clear, however, that customers did sometimes deliver cars in the evening, or even at weekends, and that the part of the pink land fronting the mission hall site, and round the corner towards Alfred Road, was not always clear of the Marlows’ vehicles even at those times. However, there was usually parking available for the worshippers at the mission hall for their evening and weekend services, and it was possible for residents to park at those times as well. After acquisition of the site, there is not the evidence available to know where on the pink land other people parked at weekends or in the evenings. To some extent, they would probably have been deterred by “No Parking” signs attached to the mission hall building by the Marlows, there being no physical indication on the ground, after the removal of the fence and hedge, that the Marlows’ ownership did not extend to the public right of way.
Once the Marlows had acquired the mission hall site, they started to park, and possibly store, cars within the area of the site, and also removed the hedge and fence. This reduced the amount of parking they needed on Albert Road or elsewhere. It will be remembered that a residents’ parking scheme had been introduced, making any casual use of street parking that the Marlows had enjoyed impossible to continue.
The use of the mission hall site, prior to its acquisition by the Marlows, was for religious worship at weekends and on two evenings per week. Although it was possible for some of the worshippers to park within the site, there is no evidence about the number of cars that parked inside the gates, or, indeed, of the number of worshippers. There was also occasional access by a gardener for the purpose of mowing the grass. There was occasional parking by members of the fellowship at
With the fence and hedge removed, the Marlows started parking in a way that they could not previously do –– ie at right angles to the road, partly on the pink land and partly on the mission hall site.
The Marlows’ use of the pink land was made in connection with the business carried on by them at 41 Morland Road prior to their acquisition of the mission hall land. That connection did not cease by virtue of that acquisition. In other words, the use did not cease, at least partly, to be in connection with 41 Morland Road, and become referable simply to the mission hall site. The Marlows’ use was perfectly open and was not by virtue of any permission from British Railways Board. It was of a sufficiently significant and regular extent to have been apparent to the board had its representatives inspected the site from time to time.
Right of way to the mission hall site
The Marlows claim a right of way on foot and with vehicles over Albert Road to the mission hall site. They assert that such a right passed to the trustees of the Clifton Hall Trust when they acquired the mission hall site in 1984, either under section 62 Law of Property Act 1925 or under the rule in Wheeldon v Burrows*. The trustees had originally held the mission hall site as lessees; there is no suggestion that there was to be any use of the land other than for the provision of a place of worship. That was the use of the mission hall at the time of the sale to the trustees. They no doubt acquired, I think under section 62, rather than the rule in Wheeldon v Burrows, rights of way with and without vehicles that were necessary to the reasonable enjoyment of the site as a place of worship. In this context, I do not consider that the trustees would have been restricted to the use of the right of way only at the hours that they had been accustomed to use it up to the time of the transfer to them. If the fellowship had chosen to hold services every morning and every evening seven days a week, or if they had chosen to hold activities associated with the fellowship, such as fund-raising jumble sales, they would have been entitled to access for those purposes.
* Editor’s note: Reported at (1879) 12 ChD 31
It does not necessarily follow that the right of way can be used only for the purposes of the site as a place of religious worship. I have been referred to Gale on Easements (16th ed) paras 9–08–9–13 and to Mills v Silver [1991] Ch 271, to which I would add para 9–40 of Gale. Under section 62 will pass, in my judgment, a right of way, not only for the use of the mission hall as a place of worship, but also for other purposes to which the mission hall and the site could ordinarily and reasonably be put in their state at the time of the transfer to the trustees. But the level of permitted use must be judged by reference to the purposes for which the mission hall site was being used at that time. In particular, the vehicular access should be limited to the level that is appropriate to use of the mission hall site as a place or worship, as indicated by the number of cars that parked on the site at the times of services.
However, the use that the Marlows have made of the mission hall site and the building standing upon it has resulted in an excessive use of the right of way. The site has been used on a daily basis for the parking of cars in connection with the garage business at 41 Morland Road. Cars are regularly moved between the site and the garage premises. This must have considerably increased the use of the right of way –– and, thus, the burden on the servient land –– well beyond the use actually made of the right of way when the hall was used for religious worship, and beyond any use that could reasonably have been contemplated in respect of the use of the hall for religious purposes. I do not, on the evidence, know how the hall itself is used by the Marlows: business use may, in any event, be prevented by enforcement notices by the planning authority. It may be that there have been changes to the building that result in the use being made of it being one that would not be one to which it could ordinarily and reasonably have been put at the time of the transfer to the trustees; and it may be that that use itself results in increased, and excessive, use of the right of way. Be that as it may, I am satisfied that the overall use by the Marlows of the mission hall site has resulted in an excessive use of the right of way.
I should add that it is clear that the Marlows do not have any rights of way to the mission hall site over other parts of the pink land. It is apparent that they have been driving on and off the site along the entire length of the northern boundary, where the fence and hedge used to be. No such right has been expressly granted; no such right can possibly have been acquired by prescription; and no such rights can have passed to the trustees on their acquisition of the mission hall site.
Parking and storage
On behalf of the claimant, it is submitted that the rights claimed by the Marlows cannot exist as easements. In particular, the right to store vehicles, and the exclusive right to park vehicles on effectively the entirety of the pink land, are too extensive. On behalf of the defendants, it is submitted that those rights should be recognised as easements.
It is now well established that the express grant of a right to park is capable, in some circumstances, of existing as an easement. In this context, I was referred to London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, which contains a review of the authorities. The judge was clearly concerned about where the dividing line was to be drawn between, on the one hand, rights that could be granted as easements, and, on the other hand, rights that so exclude the owner as to be incapable of being the subject matter of such a grant. He says at p1288C:
The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant.
Without having gone into the facts, the judge said that it appeared that in the case before him the rights sought did not approach anywhere near that degree of invasion of the servient land, the right granted being for customers and employees to park (if space is available) on an area set aside as a car park.
The judge also considered the unreported decision of Sir Robert Megarry V–C in Newman v Jones unreported 22 March 1982, quoting the following passage from Sir Robert’s judgment:
In view of Wright v Macadam [1949] 2 KB 744 (which was not cited in Copeland v Greenhalf [1952] Ch 488)… I feel no hesitation in holding that a right for a landowner to park a car anywhere in a defined area nearby is capable of existing as an easement… An easement may take effect subject to the right of others with a like right, without any guarantee that there will be no competition. In any case, I cannot see why the mere risk of there being not enough space for all to park simultaneously should be a reason for denying that any rights at all exist, though doubtless the limited space available confines the right to one car per flat.
I shall refer to Wright v Macadam and to Copeland v Greenhalf in a moment, since they are relied upon by the defendants and the claimant respectively. But what Sir Robert’s decision shows is the possibility of a right to park being established as an easement where: (a) it is not an exclusive right; and (b) its exercise would not amount to the effective exclusion of the servient owner from his land. Aldous J was willing to adopt this approach in granting interlocutory relief in Handel v St Stephens Close [1994] 1 EGLR 70*.
* Editor’s note: Also reported at [1994] 05 EG 159
A right to park can also arise under section 62 of the Law of Property Act 1925. This was the position in Hair v Gillman unreported 17 February 2000*. In that case, there was an informal permission, granted by the claimants’ predecessor in title to Mrs Gillman, to park one car on the forecourt of a three–storey building, there being no space
The judge examined a number of authorities concerning the extent to which a right to use land can be asserted that, of its nature, would have some exclusionary effect upon the use by the owner of that land. This was not a permission to use a defined bay. The authorities fall on one side or other of an ill–defined line between rights in the nature of an easement and rights in the nature of an exclusive right to possess or use. But, although the line may be ill–defined, there is no doubt as to the side upon which this case falls. This was a permission to park a car on a forecourt that was capable of taking two or three other cars.
* Editor’s note: Now reported at [2000] 3 EGLR 74
That case was concerned with the effect of section 62 in converting an informal permission into a legal right, a question with which I am not concerned. But the passage I have just quoted indicates again that whether a right claimed can subsist as an easement, or whether it is really a right to exclusive possession, is a matter of degree.
As to storage, the defendants point to A–G of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 (PC). The right claimed was to use foreshore and land near the waterside for storage and other purposes of the business of the respondents. It was argued on behalf of the Attorney–General that the easement claimed was too wide, since it was not confined to the respondents’ own goods and might extend to occupation of the whole of the servient land (see p603). As to this, Lord Shaw said at p617:
Their Lordships see no reason why upon the first point a right of easement should be exclusive of the storage claim. The law must adapt itself to the conditions of modern society and trade, and there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such. This principle is of general application, and was so treated in the House of Lords in Dyce v Hay… by Lord St Leonards LC, who observed: “The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind.”
The defendants rely upon this decision to show that an easement of storage is capable of existing, and that their use of the pink land is capable of establishing by prescription the right that they claim. I agree with the first part of that proposition: a right of storage is capable of subsisting as an easement in some circumstances. Whether the actual right claimed is none the less too extensive to subsist as an easement is a matter I will come to later.
In drawing the ill–defined line that Chadwick LJ has indicated, guidance can be sought from the authorities. There are, of course, cases that are examples of easements where the servient owner is effectively excluded from some part of his land: for instance, where a dominant owner has the right to lay a pipe for his exclusive benefit through the land of the servient owner. In such a case, the servient owner retains, of course, the use of the land through which the pipe passes, and is excluded only from the part of the subsoil through which it runs. I do not find cases of that sort of any assistance in deciding the present case.
Wright v Macadam [1949] 2 KB 744 was another case concerning section 62 of the Law of Property Act 1925, but it was necessary for the court to decide whether the right claimed was one capable of being granted at law. The right in question was the right to use a coal shed for the storage of coal such as might be required for the domestic purposes of a flat. It does not, unfortunately, appear from the report whether the dominant owner had exclusive use of the shed or any part of it, or whether she had the right to lock it so as to exclude the servient owner. The right claimed was, however, described by Jenkins LJ at p752 as:
a right or easement which the law will clearly recognise, and it is a right or easement of a kind which could readily be included in a lease or conveyance by the insertion of appropriate words in the parcels.
It is submitted on behalf of the claimant that this decision of the Court of Appeal does not assist the defendants, for two reasons. The first is that the degree of exclusion involved is not clear; this is a matter I shall return to later. The second is that the case concerned an express permission that was converted into a legal right by section 62 of the Law of Property Act 1925. That is true, and is true also of Hair v Gillman. So far as concerns that case, reliance being placed upon the following passage from the judgment of Chadwick LJ:
The importance of the decision of this court in Wright v Macadam (in the present context) is not that it decides what is the nature of a right that can be enjoyed as an easement. Its importance lies in the affirmation that a right that has been exercised by permission only, and is, in that sense, precarious, can pass under a conveyance by virtue of section 62; and, if it does so, becomes a right in the nature of an easement.
It is also pointed out that the other cases concerning parking to which I have referred are dealing either with express rights or with rights arising by virtue of section 62 of the Law of Property Act 1925. It is therefore said that those cases, as well as Wright v Macadam and Hair v Gillman, are all distinguishable, and that it should be very much more difficult to establish a prescriptive easement than a right arising as the result of an express grant, or under section 62. There are really two points within that general submission: the first is there must be clear evidence to establish the nature and extent of any prescriptive right; the second is that easements can be created by grant that could not be created by prescription.
As to the first point, obviously the evidence has to establish the right claimed: there may be difficulties in establishing a prescriptive easement of a detailed nature that could be created by express grant, eg the right to use a footpath between the hours of 8 am and 12 noon.
However, as to the second point, if the evidence does establish use that is consistent, and only consistent, with a right that, if it had been expressly granted, would have been capable of subsisting as an easement, the court should recognise that right as capable of being established by prescription. Chadwick LJ is not, I think, saying anything contrary to that in the passage I have quoted from Hair v Gillman. He is not to be read, as was I think suggested, that Wright v Macadam was saying nothing about the nature of a right that can subsist as an easement. What he was saying was that the distinction drawn by the judge in Hair v Gillman –– viz that Wright v Macadam involved exclusive possession of the coal shed –– was no ground upon which Wright v Macadam could be distinguished by the purposes of the point at issue, viz whether the permission could be converted by section 62 into a right. Moreover, in para 16 of his judgment, he identifies the question at issue as being whether the permission granted to Mrs Gillman “was capable of being the subject matter of the grant of an easement”. It cannot, I think be suggested that Chadwick LJ was considering rights, other than easements, that might arise under section 62. Nor does he cast any doubt on the correctness of Wright v Macadam on the question of whether the right claimed could, in fact, subsist as an easement. Accordingly, I do not consider that there are easements that are capable, as a matter of law, of being the subject matter of a grant that cannot be the subject matter of a prescriptive claim, although I accept that, evidentially, it may be very difficult to establish certain types of easement. I do not overlook what Upjohn J says at the end of the passage in Copeland v Greenhalf that I quote below, where he suggests that the position may differ between cases of express grant and prescription. It seems to me, however, that the question of whether rights claimed can amount to an easement depends solely upon the nature of those rights, and not upon how those rights come into being.
In this context, I should mention International Tea Stores Co v Hobbs [1903] 2 Ch 165. This involved the predecessor to section 62; it was held that a right of way that the plaintiffs had actually enjoyed by permission passed under the statutory general words. The right of way had been used for the purposes of the plaintiffs’ business, but wooden doors across the way were locked by the defendant at night, and he kept sole control of the key. Farwell J said at p173:
Now I find as a fact that the gates have been unlocked from 6AM to 10PM on all week–days except Saturdays, and on Saturdays from 6AM to 8PM. The way granted is that enjoyed, and I must find what the way enjoyed has been. The right of the plaintiffs is to use this roadway for the purposes of their business, and for the purposes of the person who resides there within the times I have mentioned…
Accordingly, I see no reason why, if it is otherwise valid, the defendants’ claim to parking rights should not be valid for their ordinary business hours, Monday to Friday.
The defendants also rely upon Copeland v Greenhalf [1952] Ch 488, Miller v Emcer Products Ltd [1956] Ch 304 and Philpot v Bath (1905) 21 TLR 634.
Copeland v Greenhalf is a not altogether satisfactory case, if only for the reason that Wright v Macadam was not cited (although A–G of Southern Nigeria v Holt was considered). The facts appear sufficiently from the headnotes in the following terms:
The plaintiff was the owner of an orchard and an adjoining house. Access to the orchard from the road was had by a strip of land, which was about 150 feet long, with a width varying from 15 feet at the road entrance to 35 feet in the middle, and then contracting towards the orchard end. The defendant was a wheelwright, whose premises were opposite to the strip of land across the road, owned by the plaintiff.
The plaintiff brought an action against the defendant, claiming to restrain him from placing and leaving vehicles on the strip. The defendant claimed the right to do so, setting up a lost grant (which claim was not persisted in at trial) and a prescriptive right.
The defendant’s claim, so far as proved at the trial, was that for 50 years he and his father before him had, with the knowledge of the plaintiff and of her predecessors in title, continuously stored along the strip, except for a space left for access to the orchard, customers’ vehicles awaiting and undergoing repair, and awaiting collection after repair: ––
Held, that the right exercised and claimed was too extensive to constitute an easement in law, as it amounted practically to a claim to the whole beneficial user of that part of the strip of land over which it had been exercised.
In his judgment, Upjohn J said at p498:
I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south–east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject–matter of an easement. It seems to me that to succeed, this claim must amount to a successful claim of possession by reason of long adverse possession. I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription.
The claimant contends, unsurprisingly, that the defendants’ claims are flatly inconsistent with the decision of Upjohn J. They, in response, contend that the decision is clearly distinguishable, and is, in any event, of doubtful authority in the light of Wright v Macadam, which was not cited. For my part, I find helpful guidance in the judgment of Brightman J in Grigsby v Melville [1972] 1 WLR 1355, which concerned an alleged easement of storage –– although this part of the judgment is obiter. After reading the headnote of Copeland v Greenhalf and the passage I have just read, Brightman J says at p1364E–G:
Mr Ainger countered by observing that Copeland v Greenhalf was inconsistent with Wright v Macadam [1949] 2 KB 744, an earlier decision of the Court of Appeal in which it was held that the right of a tenant to store domestic coal in a shed on the landlord’s land could exist as an easement for the benefit of the demised premises. I am not convinced that there is any real inconsistency between the two cases. The point of the decision in Copeland v Greenhalf [1952] Ch 488, was that the right asserted amounted in effect to a claim to the whole beneficial user of the servient tenement and for that reason could not exist as a mere easement. The precise facts in Wright v Macadam [1949] 2 KB 744, in this respect are not wholly clear from the report and it is a little difficult to know whether the tenant had exclusive use of the coal shed or of any defined portion of it. To some extent a problem of this sort may be one of degree.
In the case before me, it is, I think, clear that the defendant’s claim to an easement would give, to all practical intents and purposes, an exclusive right of user over the whole of the confined space representing the servient tenement. I think I would be at liberty, if necessary, to follow Copeland v Greenhalf [1952] Ch 488. I doubt, however, whether I need express any concluded view on this aspect of the case…
Brightman J regards the question as one of degree, but regards Copeland v Greenhalf as correct in principle. That is the approach that, I think, is correct, and that I propose to apply in the present case, although there are further special considerations (see below) that may apply in the case of parking, in contrast with storage. The other cases (Miller v Emcer Products Ltd and Philpot v Bath) are, I think, entirely consistent with that approach. The degree of exclusion of the servient owner in Miller v Emcer (right to use a lavatory) is really no different in principle from the degree of exclusion of a landowner from a right of way while it is being used. And while it is true that the placement of rocks and boulders on the foreshore, in Philpot v Bath, in order to protect the dominant tenement from the ravages of the sea, excluded the owner of the servient land from using the small part of the foreshore occupied by the rocks and boulders, it should be noted that the case was really one about dispossession, and that the easement was conceded (see Vaughan Williams LJ at p636) on behalf of the servient owner and probably did not represent any significant exclusion from the foreshore as a whole.
The Marlows have not, in their claim, sought to distinguish between parking and storage so far as their alleged rights over the pink land are concerned. Applying what I have identified as the correct approach, I do not consider that a right to store cars in the way in which the Marlows have done can subsist as an easement. It amounts to effective exclusion of the claimant and his predecessors in title from the alleged servient tenement –– and this is so whether one regards the claim as one to park and store vehicles on the pink land, regarding the pink land alone as the servient tenement, or regarding the whole of Albert Road as the servient tenement. If the Marlows claim a right that includes a right to store cars anywhere on the pink land, then I must reject their claim altogether.
However, the case is not that simple on the facts, since the evidence is that parking, in contrast with storage, did take place on the pink land. As will be apparent from my findings of fact, there are two areas of land to consider. First, there is that part of the pink land upon which, upon Mr Marlow’s own evidence, he stored vehicles since 1970 –– that is to say, the part of the pink land to the east of the frontage of the mission hall site. Second, there is the remainder of the pink land, upon which parking has taken place since 1970, but upon which there has been no storage, or only occasional storage.
I do not consider that the Marlows can establish any easement over the first part of the pink land to which I have just referred. In my judgment, a right of storage would, for the reasons already given, go too wide to be capable of subsisting as an easement. I do not consider that the use for storage (which, as I have said, goes too wide) can be relied upon to support a lesser claim to a right to park that may, depending upon the extent of the right claimed, be capable of subsisting as an easement. And there is no evidence of parking (in contrast with storage) on that part of the pink land sufficient to establish any right to park.
So far as concerns the remainder of the land, I consider that the exclusive right to park six cars, during normal business hours on Mondays to Fridays in connection with the business carried on at 41 Morland Road, is capable of subsisting as an easement. I say six cars, rather than eight cars, because the figure of eight cars claimed by the Marlows includes two spaces taken up by the cars being stored on the first part of the pink land. In my judgment, such a right, being limited as it is in time, does not, as a matter of degree, amount to such exclusion of the claimant and his predecessors in title as to preclude it subsisting as an easement. In my judgment, the evidence is sufficient to establish that the Marlows have acquired that right by prescription. They have used the pink land, excluding that part used for the storage of vehicles that I have already described, for the purposes of parking in connection with their business at 41 Morland Road since 1970. There should also be excluded that part of the pink land at the west end of Albert Road, which I have mentioned at pp121A above. They did so openly and
Although there has been some use of the pink land for parking out of business hours, in particular, the delivery of cars by customers in the evening to be worked on the next day, that use is not sufficiently established, in my judgment, either: (i) to enable the Marlows to claim the right to park on the pink land out of business hours; or, conversely, (ii) to enable the claimant to argue that the Marlows’ use is such as to amount to exclusion of him, and thus to be incapable of giving rise to the acquisition of an easement by prescription. It has not been sufficiently established for two reasons: first, there is no evidence at all about how often cars are parked in connection with the Marlows’ business on the pink land overnight; and, second, there is no evidence of how many cars are parked at any one time in this way.
I have effectively decided that the Marlows are able to establish the right to park on the pink land on the basis that the temporal extent of such parking –– only during business hours Mondays to Fridays –– puts the case clearly on one side of Chadwick LJ’s ill–defined line (referred to above). There are, however, forceful arguments in favour of the view that an exclusive right to use an allocated parking space (eg granted to a tenant of a block of flats in relation to a space on a forecourt) is capable of subsisting as an easement, and if those arguments are correct, then it might not be necessary to place reliance upon the limited time over which the Marlows can exercise their right to park in order to establish that right as an easement. It is not necessary for me to decide that question, and I say no more about it.
There is one further aspect of the case with which I must deal. It is said on behalf of the claimant that there is another reason why the defendants’ claim to a parking easement must fail. That is because, so it is said, it is not possible to include in the prescription period any period of time during which the conduct relied upon to establish the right was illegal; and that the conduct relied upon by the Marlows was in fact illegal, as their use of the pink land for parking was without necessary planning permission and contrary to planning control. Two cases are relied upon, to which I must refer.
The first case is Neaverson v Peterborough Rural District Council [1902] 1 Ch 557. Under the Act in question (providing for the inclosure of certain commons and their drainage), it was enacted that the herbage on roads should belong to the persons to whom the commissioners should, by their award, allot the same, and that, in their award, the commissioners should insert provisions to be observed by the proprietors for completing and maintaining the drainage and inclosure. By their award, the commissioners awarded the herbage on certain roads adjoining watercourses to the surveyor of highways, to be let by him annually for the depasturing of sound and healthy sheep and for no other cattle or stock whatever. The surveyor of highways had for more than 50 years made a practice of letting the herbage for the depasturing of cattle and horses, as well as sheep. It was held that: the prohibition on pasturage on the roads of stock other than sheep was intended to be a permanent provision; it was meant not merely for the protection of the allottees of land under the Act but also for the preservation of drainage in the public interest; and it was therefore not competent for the allottees, or any body of persons, to make a grant or release in favour of the surveyor of highways so as to extend the right of pasturage to stock other than sheep. Accordingly, a legal origin could not be presumed in order to support the practice of the surveyors of highways. The leading judgment is that of Sir Richard Henn Collins MR; much of it is concerned with establishing that the Act was for the public benefit. Then, at p571, he considers the provision for excluding the depasturing of stock other than sheep, and says:
I do not think that, in the face of that provision in the award, it would be competent for the owner of the soil of this road or any other persons to grant the right of depasturing cattle and horses on it, because that would be distinctly contrary to the purpose of the Act. It appears to me that the test, by which to determine whether the Court ought to presume a lost grant in this case, is to consider whether, immediately after the making of the award, the owners of the allotments, or any other persons could legally have met together and agreed to grant to the surveyor of highways the right to depasture cattle and horses on the roads. I think that such a grant would have been directly contrary to statutory provisions, which made it unlawful to depasture stock other than sheep on the road…
And at p573 he says:
I agree that the Court is endowed with a great power of imagination for the purpose of supporting ancient user, but, in inferring a legal origin for such user, it cannot infer one which would involve illegality.
It is plain from that decision that a prescriptive right cannot be established where the use made of the servient land is illegal, not in the sense of being criminal (although, no doubt, that would be sufficient), but in the sense of being contrary to express statutory provision. Since any prescriptive right is based upon an assumed grant, it is only where the grant that is to bepresumed could have been lawfully effected that a prescriptive right can arise.
The second case is Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14. The plaintiffs were the owners of Horsell Common –– historically wasteland of the manor –– who sought an injunction restricting the vehicular use of a track across the common by the defendant. The defendant claimed a prescriptive easement. The plaintiffs argued that the acquisition of such an easement was prevented by section 193 of the Law of Property Act 1925, which rendered such user of manorial wasteland without lawful authority (ie the consent of the landowner –– see Dillon LJ at p17) illegal, and exposed the person in breach to a fine. The judge ruled that the illegal user could be rendered legal by consent, and that there was no general rule that prevented acquisition of the easement by illegal acts. His decision was reversed by the Court of Appeal, which held that an easement could not be acquired by conduct that, at the time the conduct took place, was prohibited by statute. It should be noted that this decision was reached notwithstanding that, had the landowner actually made an express grant of the easement claimed, it would have been perfectly valid. In other words, it would not be possible to rely upon conduct that was in fact contrary to statute as evidence of a grant that, had it been made, would have rendered the conduct perfectly lawful. Dillon LJ appears to base his decision upon the basis that “an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute” (see p20). Kennedy LJ agreed, but he also put it rather differently when he said at p23:
Of course the court may well recognise an easement established by activity which is only illegal to the extent that it infringes a civil right but, so far as criminal rights intended to protect the interests of the public are concerned, I see no reason why what was said by Templeman LJ [“The Court will not recognise an easement established by illegal activity”] should not be applied in the circumstances of this case.
I do not, however, consider that Kennedy LJ can be read as saying that the principle (preventing acquisition of an easement by illegal activity) can apply only where the conduct is criminal.
Sir Roger Parker agreed with both judgments.
It is clear, I think, from these two authorities that an easement cannot be acquired, as Dillon LJ succinctly put it, “by conduct which, at the time the conduct takes place, is prohibited by a public statute”.
The following question then arises in the present case: if the conduct relied upon in support of the claim to the prescriptive easements required planning permission, but no such permission was obtained or there was a breach of planning control, is that conduct illegal in the sense that it is prohibited by a public statute, and, if not prohibited, is it none the less of a character that should be treated in the same way as if it were expressly prohibited?
The question needs to be answered by reference to the Town and Country Planning Act 1971, and, subsequently, the Town and Country Planning Act 1990. The essential points in relation to both Acts are:
1. There is a requirement for planning permission for development (development in this context including a change of use).
2. There is a “breach of planning control” where development (in that sense) is carried out without planning permission.
3. A breach of planning control is not of itself a criminal offence, and does not enable a person affected (ie a next–door neighbour objecting to a new window) to bring proceedings. Instead, the Acts provide for the service of an enforcement notice in a case of breach of planning control, service of such notices being a matter for the decision of the planning authority. It is also possible for a planning authority now to seek injunctive relief to restrain a threatened breach of planning control.
4. However, there is a (criminal) sanction if there is non–compliance with an enforcement notice.
In my judgment, the use of land for a purpose that requires planning permission, but where such permission has not been obtained, is not, prior to the service of an enforcement notice or the commencement of proceedings seeking injunctive relief, conduct that is “illegal” in the sense contemplated in the two cases considered above. Nor is it conduct that is prohibited by statute, in the sense in which Dillon LJ uses that phrase. Nor, in my judgment, is it conduct of a character that should be treated in the same way as if it were illegal. In contrast with the two cases to which I have referred (where the statutory provision expressly provided that certain conduct was not permitted –– and, in the case of section 193 of the Law of Property Act, laid down a criminal sanction) parliament, while providing that development requires planning permission, has, at the same time, laid down a clear code for dealing with what is to happen where there is a breach of planning control. Under that code, development –– including a change of use –– without planning permission does not bring about any automatic sanction. The planning authority must exercise their discretion whether or not to serve an enforcement notice or seek injunctive relief. There will be cases where they clearly would do so, but, equally clearly, cases where they would not do so (eg where the failure to apply for permission was an oversight and would be bound to have been granted if it had been sought). It is only once a notice has been served and not complied with that any sanction can be imposed. Parliament has left the decision about what should or should not be allowed to the planning authority and has not itself laid down what can and cannot be done.
The principle that lies behind the two cases that I have considered is that conduct that parliament has prohibited should not be allowed to form the foundation of prescriptive rights, because that would, in effect, be contrary to public policy. There is no such breach of public policy in allowing prescriptive rights to arise where they are based upon conduct that is in breach of planning control, but where no enforcement notice has been served or injunctive relief sought. In the case of a change of use, the planning authority have 10 years within which to serve an enforcement notice. If they do so, continued use in breach of that notice is certainly illegal (in the relevant sense for the purposes of prescription) from the expiry of the time for compliance with that notice (subject to an appeals process), and, if it were necessary for me to decide this, probably from the service of the notice (unless it is successfully appealed). If, in relation to a change of use, no enforcement notice is served within that period, the planning authority can no longer serve one. It would, in my view, be impossible to contend that user without planning permission after that time was incapable of constituting conduct that could form the foundation of a prescriptive right. I see no reason why, in principle or upon grounds of public policy, such user even during the 10–year period, should not count towards the period necessary to establish an easement by prescription. In contrast, if an enforcement notice is served within the 10–year period and is not challenged, user, at the very latest, after the time for compliance with the notice is clearly illegal and cannot count towards any prescriptive period. There is, accordingly, no prospect of a person acquiring by prescription –– which requires a minimum period of 20 years –– an easement that, by the time it is acquired, is a breach of planning control that can be the subject of an enforcement notice.
That last comment is subject to this observation. It may be –– and this could be so in the present case –– that the evidence before the court to establish the prescriptive right is different from the evidence before the planning authority in relation to the service of an enforcement notice (or on appeal from it). Inconsistent conclusions might therefore be reached on the underlying facts. That consideration does not, in my judgment, affect the conclusion that, as between the owners of the alleged dominant and servient tenements, questions of planning control do not arise in relation to the prescriptive rights claimed, unless and until an enforcement notice is served. Accordingly, I reject this part of the claimant’s case.
Conclusion
The defendants’ defence to the claimant’s claims for declarations partially succeeds. The defendants have established limited rights of way over the pink land as access to the mission hall site as indicated in at p123E-H above. They have also established certain prescriptive easements, as owners of 41 Morland Road, over part of the pink land, that is to say, the right, in connection with the business at 41 Morland Road (but not otherwise, in particular, the mission hall site itself is not part of the dominant tenement in relation to this right), to park up to six cars on the pink land, excluding that part beyond the frontage of the mission hall site, during the normal business hours on Mondays to Fridays, those hours, of course, not now being capable of extension. I use the word “park” here in the sense of the temporary parking of vehicles, in contrast with their storage. I will hear counsel further on the precise form of order and costs.
