Neutral Citation No: [2008] EWHC 2901 (Ch)
Case No: CH/AP/317
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(On appeal from the Adjudicator to HM Land Registry) 

Birmingham Civil Justice Centre
The Priory Courts
33 Bull Street
Birmingham B4 6DS

Date: 27th November 2008

      Before: 
HIS HONOUR JUDGE PURLE QC
     (sitting as an additional High Court Judge)
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Between:

	GURPAL KAUR VIRDI
	Appellant 
	
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	SATNAM SINGH CHANA
HARDIP SINGH CHANA
HARJINDER KAUR	

Respondents	
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Mr. W. Hansen (instructed by Geoffrey T. Smith & Co) appeared for the Appellants
Mr. J. Stenhouse (instructed by Bhakar Tomlinson) appeared for the Respondents.
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JUDGMENT

Judge Purle QC:

1.	This is an appeal from a decision dated 11th April 2008 of Ann McAllister, sitting as Adjudicator to HM Land Registry (“the Decision”).  She decided that the Respondents were entitled to register the benefit and burden of an easement to park over land in part owned by the Appellant forming part of 38 Clark Road, Wolverhampton (registered with title number WM116417). 

2.	The Respondents own 34 Clark Road registered at HM Land Registry under title number SF52653.

3.	By an application dated 9th August 2004 the Respondents claimed rights acquired by prescription to park motor vehicles in 2 spaces for the benefit of 34 Clark Road. One of those claims was abandoned, so that only a claim to one car parking space remained.

4.	By an Order dated 31st March 2006 the Adjudicator ordered the Respondents to produce a “plan indicating … the area over which the prescriptive right is claimed”.

5.	The area over which the right was claimed was a rectangular area coloured yellow (“the Yellow Land”) on a plan produced in compliance with the Order dated 31st March 2006.

6.	 Part of the Yellow Land is within the Appellant’s title.  Part of it is within what appears to be an unregistered title forming part of the accessway between 38 Clark Road and 40 Clark Road, over which the Respondents have a right of way.

7.	The Adjudicator found on the facts that the Respondents had proved user of the requisite quality for 20 years to justify registration of the right to park as an easement, assuming that such easement was capable of existing in law.  She also held that the easement claimed was capable of existing in law, and accordingly found for the Respondents. 

8.	There is no appeal from the findings as to user.

9.	The Appellant does however challenge the Adjudicator’s decision as to whether, on the facts, the easement claimed was capable of existing in law.

10.	The Adjudicator appears to have found (though the order as drawn up does not precisely reflect this fact) that the servient land was not limited to the Yellow Land, but was in fact a slightly larger gravelled area in the south-east corner next to the fence of 38 Clark Road (“the Disputed Land”).  See paragraphs 2, 6, 17 and 55 of the Decision.  Whilst she recognised the difference between the Yellow Land and the gravelled area in paragraph 17 of the Decision, her findings appear clearly to relate to the whole of what is now the gravelled area, that is to say the whole of the Disputed Land.  This is hardly surprising, as the reason the area in question has now been gravelled over is to delineate the parking space, and I see nothing in the Decision to suggest that the parking rights have been or must now be exercised by the dominant owner calculating (with no help from any indication on the ground) where the Yellow Land ends and becomes the reminder of the Disputed Land.  In my judgment, a fair reading of the decision leads to the conclusion that the prescriptive right exists over the whole of the Disputed Land or gravelled area, a conclusion reinforced by the fact that no vehicle can get on to the Yellow Land except by passing over other parts of the Disputed Land.

11.	The Appellant’s case was, and is, that an easement cannot exist giving the dominant owner an exclusive right to park (as this must be) in a single parking space.  The Adjudicator found that there is only space to park one car on the gravelled area.

12.	 The first 3 grounds of appeal (for which the Adjudicator refused permission to appeal) are to the effect that the Adjudicator should have limited her consideration of the issues before her to the Yellow Land, as indicated on the plan produced in accordance with the Order dated 31st March 2006.  The application for permission to appeal on those 3 grounds was also made before me.

13.	I grant permission to appeal on the first 3 grounds.  It is clear, as I have said, that the Adjudicator considered that the right to park extended to the whole of the gravelled area, because that is the car parking space about which the parties were in dispute.  Mr Hansen (for the Appellant) correctly pointed out that this area is different from the Yellow Land.  The Adjudicator in refusing permission to appeal thought the differences between the Yellow Land and the Disputed Land were so small as to make no difference.  However, I was persuaded by Mr Hansen that, depending on the view that one takes of the correct application of the ouster principle (to which I shall come) the difference, though small, might be very material.  I shall therefore give permission to appeal.

14.	Although I have given permission to appeal, I am not persuaded, having heard full argument, that it would be right to limit my consideration of the issues on the appeal to the Yellow Land.  Although that was the land delineated on the plan, the evidence does not appear to have discriminated between that and the remainder of the Disputed Land. Mr Hansen accepted before me that, had the whole of the Disputed Land been delineated on the plan, the evidence before the Adjudicator would not have been any different.  As therefore the Adjudicator found that the easement was over the Disputed Land and not just over the Yellow Land, it would be artificial and unjust to limit consideration of the ouster issue (as Mr Hansen invites me to do) to the effect of the claimed easement on the Yellow Land alone.  Had Mr Stenhouse (who appeared for the Respondents before me) asked for formal permission to amend the plan or rely on a different one before the Adjudicator, the Adjudicator could not have refused such permission.  In those circumstances, the Adjudicator was right to proceed on the basis of the evidence before her and to consider the ouster issue in relation to the whole of the Disputed Land, and the Appellants have not been prejudiced by her doing so.  Although, therefore, I give permission to appeal on the first 3 grounds, there is ultimately nothing in them and I would dismiss the appeal in so far as it relates to those 3 grounds.

15.	I now turn to consider the ouster issue (to which the remaining grounds of appeal relate).  It has long been recognised that an easement cannot be claimed if its effect is to deprive the servient owner of the benefits of ownership.  This principle was applied to car parking spaces by the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764.  On the facts of that case, the Court of Appeal held that the claimed parking easement did not exist in law as the owner of the servient land would be left without any reasonable use of the land, thus rendering that ownership “illusory”.  

16.	Despite powerful criticisms of that decision by the House of Lords in Moncrieff v Jamieson [2007] 1 WLR 2620, it was not overruled and remains binding on me.  I must therefore apply it to the present case, unless it is distinguishable.

17.	Applying the Batchelor v Marlow test, is the effect of the claimed easement to render the Appellant’s ownership of part of the Disputed Land illusory?  In my judgment, it is not.

18.	The only sensible use of the Disputed Land of which the servient owner is deprived in this case is the right to park a car on the gravelled area.  However, only part of that area is within the Appellant’s ownership.  Exactly what part is in the Appellant’s ownership is not clearly established.  What is clear is that the part within the Appellant’s ownership is not sufficient to park a car on.  The Appellant would need to trespass on the adjoining unregistered owner’s land in order to park on the Disputed Land.  The Appellant has a right of way over but does not have a right to park on the adjoining unregistered land.  The Respondents do have such a right (unless the order appealed from is allowed) as they have acquired that right by prescription.  It cannot, in my judgment, be said that depriving the Appellant of the ability to park on the gravelled area amounts to denying her a reasonable use of the servient land.  A user which can only sensibly be effected by committing a trespass on adjoining land (as parking a vehicle on the gravelled area would amount to if exercised by the servient owner) is not a reasonable use of the servient land, and depriving the Appellant of that ability does not render ownership of the servient land illusory.

19.	As already noted, the Disputed land is separated from the remainder of the Appellant’s land by a fence.  It is not said that the Appellant would be able by removing the fence to create a new parking space exclusively on her own land.  The land the other side of the fence appears from the photographs in the Appeal Bundle already to be used for parking and the loss of the Appellant’s part of the Disputed Land has no material impact on that or any other potential use.  It is accordingly not suggested that the Appellant needs recourse to her adjoining part of the Disputed Land for that or any other purpose.  I was told that she wishes to park on the Disputed Land, that is to say the whole of the gravelled area.  

20.	Mr Stenhouse draws attention to other uses to which the gravelled area might be or has been put.  Thus, there is a tree on the servient land, in the corner of the gravelled area, which appears from the photographs to have been planted relatively recently.  The planting of that tree (or any replacement), and going on to the servient land to tend to it during its life, is not an illusory right.  The same could be said of other shrubs or trees that might be planted on other parts of the servient land, so long as this did not (which it need not) obstruct the right to park.  Some limitation on the servient owner’s user is a common feature of easements generally, and applies (for example) to all rights of way.

21.	The Appellant could also come on to the servient land for the purpose of maintaining or repairing the fence which abuts it, or replacing the fence with a wall.  She could also go onto the gravelled area (so far as within her ownership) to erect signs, or place decorative flower pots on the land, subject again to not obstructing the ability to park on the gravelled area, which none of this need do.

22.	In reaching her decision, the Adjudicator analysed with some care the decision of the House of Lords in Moncrieff.  She also accepted the submission of Mr Stenhouse that the law had been changed by Moncrieff so that the test of ouster, though ‘still in play’, had been modified and, in effect, weakened.

23.	She continued:

“It seems to me plain that the strict approach adopted in Batchelor v Marlow … is no longer good law … 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” [who is the Appellant before me] “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.”

24.	I would agree with this approach, which seems compelling as a matter of first principle, were it open to me to do so.  It seems to me, however, that despite the support that this approach has from the House of Lords in Moncrieff, in particular from the helpful article of Mr Alexander Hill-Smith to which Lord Scott paid tribute at paragraph [61], the observations of their Lordships were strictly obiter on this point.  As Batchelor v Marlow was not overruled, I should continue to regard myself as bound by the Court of Appeal’s decision in that case. Nevertheless, as the present case is in my judgment distinguishable on the facts, I see no reason to depart from the actual decision of the Adjudicator, who concluded her remarks on the correct approach with the following:

“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.
 
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 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.”

25.	Those latter observations accord with my own views.  Altering the surface did not commend itself to the Court of Appeal in Batchelor v Marlow, but where, as here, the parking place is adjacent to a domestic property, the ability of the domestic owner to alter the surface for aesthetic reasons cannot be dismissed as wholly insignificant or illusory. Neither can the other examples of user referred to by the Adjudicator (and Mr Stenhouse in argument).  Moreover, the Adjudicator heard the witnesses (which I have not) and had the advantage (which I have not had) of a site view, and I should be slow to depart from her conclusions on these issues, for those reasons alone.  Far from wishing to depart from her conclusions, I agree with them.

26.	In the circumstances the appeal is dismissed, though the parties may wish to consider whether the Order appealed from should be varied to make clear that the servient land is the Disputed Land, and not just the Yellow Land.