PROPERTY CHAMBER
FIRST-TIER TRIBUNAL
LAND REGISTRATION DIVISION

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
LAND REGISTRATION ACT 2002

REF NO 2014/0850

B E T W E E N:

GEORGINA ELLEN EVANS

Applicant

And

(1)	ANDREW LESTER BENN
(2)	BARBARA JANET BENN

Respondents

Property address: 209 Coast Road, Pevensey Bay, Pevensey and land on the east side of Marine Avenue
Title numbers: SX59203 and SX44917

Before Judge McAllister
Alfred Place, London
5 June 2015

Representation: Both parties appeared in person

DECISION

Introduction

1.	The issue in this case is whether the Applicant, Mrs Evans, has acquired easements by prescription or lost modern grant over an area of grassland (‘the Green’) owned by the Respondents, Mr and Mrs Benn. Mrs Evans is the registered proprietor of 209 Coast Road, Pevensey Bay (registered with title number SX59203) (‘the Property’). Mrs Evans purchased the Property in August 1977.  Mr and Mrs Benn bought the Green (forming part of title number SX44917) by a transfer dated 29 October 2013. The application for registration of the transfer remains pending, subject to the prior application made by Mrs Evans on 16 October 2013.

2.	The Property forms one of a number of terraced houses, numbering 197 to 213, probably built in the late 1950s/ early 1960s, as an estate. These houses are separated from the Green by a service road which is some three metres wide, and which curves round from the Coast Road, allowing access at either end.  The Green, service road and other footpaths all formed part of the estate, and are now in title SX44917, together with two other areas of open green land. 

3.	By her application Mrs Evans applied for the registration of the benefit of, and the entry of a burden on, her title and that of the Respondents of the following easements: (a) a right of way with or without vehicles for the benefit of the Property over the Green, (b) the right to use the Green for parking vehicles and (c) the right to use the Green for recreational uses. In the Statement of Truth in support of the application, Mrs Evans stated that she had used the Green for these purposes, together with her now deceased husband (whom she married in 1981) and family, since she purchased the Property on 2 August 1977. 

4.	I had the benefit of a site visit on 4 June 2015, and heard evidence from Mrs Evans, Mr Benn, and the owner of number 213 Coast Road, Mr Pack, who gave evidence on behalf of Mr and Mrs Benn.

5.	For the reasons set out below I will order the Chief Land Registrar to give effect to the application in a modified form.  I am satisfied that an easement to park up to two vehicles has been acquired either by prescription or lost modern grant, but I am not satisfied that Mrs Evans has acquired rights to use the Green as an amenity or for recreational purposes, or a right of way over the Green. 

    Background and evidence   

6.	Entry Number 2 in the Property Register of the Property states that the Property has the benefit of the rights granted but is subject to the rights reserved by a transfer dated 16 December 1963. I have obtained a copy of this transfer, made between Dukelands Estate Ltd and Gerald Edward Moore. The Property was then known as 11 Beachlands Coast Road.  The Property was sold together with the rights set out in the First Part of the Schedule. The rights referred to were rights of way over the service road and footpaths identified on the plan. These are clearly distinct from the ‘grassed area’ (the Green). 

7.	Part IV of the Schedule imposes certain positive obligations on the purchaser including an obligation to ‘contribute a rateable proportion towards the expense of maintaining and repairing the footpath and service road upon which the said land abuts and which is used in common with the said land and other properties abutting on the said footpath and also of keeping cut and in good condition the grassed areas bounded by the said service road and Coast Road.’  This obligation is imposed on the nine properties fronting the Green.  

8.	This is the only reference to the Green in the 1963 Transfer. An obligation to keep the Green in good condition does not, in my judgment, of itself carry with it any right to use the Green for any specific purpose, other than fulfilling that obligation. In other words, this obligation cannot be read, in my judgment, as conferring an implied easement to use the Green in the way claimed by Mrs Evans. But the obligation clearly indicates a close connection between the Green and the houses. They are all part of the same estate. I should also add that, as the covenant is a positive one, it is unlikely that it can be enforced against the successor in title to the original purchasers of the various properties.

9.	Part III of the Schedule in the Transfer provides that no more than one dwellinghouse and one garage are to be erected on each plot, and that such dwellings can only be used as a private dwellinghouse. No trade manufacture or business of any kind is to be carried out, other than the profession of solicitor, surgeon, physician or dentist. Again, these covenants make it clear that the original parties contemplated that the various properties should be used only for residential and not commercial purposes. 

10.	The Green, (and the other greens on the Coast Road) is open and accessible to all.  It is possible to park some 12 to 15 cars on it. Although the Green shares some characteristics with a village green or common it is clear that the public at large do not use it as of right, and indeed are asked on occasion to move off the land, particularly if anyone parks a car there.  

11.	The Coast Road is separated from the sea by a row of houses. The road is approximately two miles long, and runs some 100 metres inland parallel to the sea. Access to the sea is possible at a number of points. Mr and Mrs Benn purchased 326 Coast Road in 1986, although Mr Benn has been coming to the area for holidays since 1968.

12.	Mrs Evans described the use of the Green in the following terms. In general terms, it is used freely and frequently by all the residents of Coast Road whose houses abut the service road. It is a general amenity area. Children play there, picnics have taken place there; and no doubt owners have walked their dogs, pushed prams and otherwise used the land as an amenity. Mrs Evans, and others, made use of the Green to walk to the Coast Road, not following any defined route. The residents kept the grass cut and in good condition, covered a large and dangerous hole, and for a while maintained a chain fence by the side of the road to protect children from the road. The use of the Green has always been sensible and fair as between the various owners. The Green has been kept in good order over the years by the various residents. Now, Mr Benn makes a point of cutting the grass. 

13.	In specific terms, though, the claim made by Mrs Evans to use the land as a communal area for recreation, leisure and for amenity purposes is limited to the use by her children when they were small (and therefore not for the requisite period of 20 years) and occasionally walking across the Green to reach the road. The route taken has varied over time: there is no fixed point of entry or exit, and has depended on whether Mrs Evans was turning left or right once she reached the Coast Road. 

14.	Seven of the nine properties overlooking the Green have converted the area immediately outside their front door to a parking space. Mrs Evans has now built flower beds at the front of her house, so cars cannot be parked there, or at least it is more difficult to do so.   The Green is used, generally, by Mrs Evans and others, therefore, when more parking is needed. Residents tend to park in the same place, as close to their property as possible. On Mrs Evans’ evidence, as many as four cars have parked there, on the occasion of family birthdays, special events, and when friends and family have visited the Property. This has been the case since she purchased the Property.  It was more usual for one or two cars to be parked. The use has been regular, if clearly not constant. 

15.	 Mrs Evans stated that there is no defined area where she and her visitors parked and indeed there is nothing on the Green itself to delineate or mark any parking spaces. The semi circular shape of the Green makes it difficult to delineate a specific area.   If she or any of her family or friends  found that there someone already parked in the area where they  would usually park, then their cars would be parked somewhere else. It seems clear to me that neighbourly tolerance has prevailed, and that no-one has considered that they are entitled to park in any particular place. Mr Benn has seen cars connected with the Property parked occasionally at weekends and sometimes during the week. I fully accept the evidence given by Mrs Evans on this point, which in any event is corroborated by Mr Benn. 

16.	The Property was used by Mr and Mrs Evans as a holiday home. She has spent more time there since the death of her husband in February 2013. Before then, the Property was used at weekends, and over the Christmas and summer holidays. The frequency of the use of the Property has varied over time so that, for example, when Mrs Evans’ children were small, she spent one in four weeks there. In addition, in the early years, there were times when the Property would be used during the week, when the shop owned by Mr Evans (who was a master locksmith) was shut. Again, more use of the Property was made when Mr Evans retired in 1998.   Mr Evans owned two distinctive cars: an open top Rolls Royce and a limited edition Range Rover, with a private plate. 

17.	Mr Benn and Mrs Benn, as I have said, purchased the Green (which forms part of title SX4491) in October 2013. The land in the title was due to be sold by auction, but a private sale was negotiated in advance of the auction. The price paid was £22,000. It is clear from all the evidence I have heard and documents I have read that there was considerable disquiet at the time of the purchase about the possible loss of the Green as an amenity area for the residents of the estate.  Some of the residents were considering obtaining an injunction. They were then reassured by Mr Benn that he intended to keep the Green as an open space for the benefit of the residents. 

18.	When Mr Benn became aware of the application made by Mrs Evans, he asked the neighbours to complete a survey relating to the use made by Mrs Evans of the Green. The introduction to the survey clearly stated that Mrs Evans intended to claim rights over all the Green with the result that the rights of other residents would be put in jeopardy, and that, if successful, Mrs Evans could stop the use of others. This was not, and is not, Mrs Evans intention: she has made it clear that her application was intended to protect all those whose houses abut the Green. This has been clear to Land Registry: see for instance her letter dated 8 November 2013 and the further letter dated 12 May 2014.  Mrs Evans also wrote to her neighbours on 9 December 2014, stating that she was trying to preserve the rights of access to and use of the Green for the benefit of the two blocks of houses abutting the Green. No replies were received to her questions.

19.	 The covering letter to the survey also stated that if Mrs Evans were to be successful the Green would need to be sold. It also stated the Green is a potential building plot within ‘the Wealden building line’ and might be developed if sold.  All the replies were to the effect that Mrs Evans did not park on the Green: at least one said that the Green was used by Mrs Evans for recreational purposes.  Some stated that they wanted the Green to remain unspoilt and well looked after and to be used for the benefit of the residents. Some said that the Green has always been used by children for playing, and for parking by visitors.

20.	 In view of the way in which the issue was framed, it seems to me that no real weight can be attached to the results of the questionnaire in so far as they purport to describe the use made by Mrs Evans.

21.	Mr and Mrs Benn’s original objections to the application by Mrs Evans are set out in a letter dated 25 November 2013 from their then solicitors. They stated that they did not accept that Mrs Evans lived at the Property permanently; that the Green was not used for recreational purposes; that any parking by Mrs Evans has not been exclusive, as other residents park there as well. 

22.	Mr Benn’s evidence was that he knew the area well, as he had been going on holiday in Pevesney Bay since 1968. When it became known that the Green and other land was for sale, he decided to pay the reserve price, and to secure the purchase. His evidence was that the Green had always been maintained but not necessarily as well as he wanted it to be: he was anxious to maintain the Green and the other land so as to allow the residents to use the open spaces, as he put it, ‘with common sense, as they had always done’.  The land is insured, and he has done some work on the Green and other land, for instance replacing the drains. He has seen the Green used by the residents for walking dogs, and for allowing children to play, and for parking. Mr Benn considered fencing the Green from the road, and putting up a sign to deter members of the public from using it, but has not done so yet. 

23.	Mr Benn stated that he had no objection to the residents using the Green, and indeed he went further: if Mrs Evans had limited her claim to park to one specific area, he would not have objected. His objection is, in great part, to the fact that Mrs Evans has claimed rights over the entirety of the Green.

24.	I heard evidence from Mr Pack, who has lived at number 213 as his permanent address since 1998. He stated that he had never seen anyone going to or from the Property other than one elderly gentleman (who I believe is Mrs Evans’ cousin). If, he said, Mrs Evans was living at the Property, she must be a ghost. He also stated that he knows every car: he keeps an eye out for strangers parking on the Green, particularly in the summer months. There is the remains of a metal post on the Green. There used to be a sign saying: ‘No parking please – residents only.’

25.	Mr Packs’ daughter parks her car on the Green on a regular basis opposite his house. He has cut the grass in the area outside his house. The Green, as he put it, is used for the personal use of the residents. Mr Pack confirmed that other residents also used the Green for parking. 

26.	Mr Pack also gave evidence about the events leading to the purchase by Mr and Mrs Benn. Mr Benn assured him, and others, that he was buying the Green and other land for the benefit of all the residents, and that his intentions were to keep the land in good order. As Mr Pack saw it, although the Green belongs, as a matter of law, to Mr and Mrs Benn, morally it belongs to all the residents. The assurances given by Mr Benn meant that the residents took no action to prevent the sale. 

The law as it applies to the facts of this case
  
General principles

27.	It is settled law that four requirements must be satisfied before there can be an easement. In Re Ellenborough Park [1956] Ch 131 at 163 they were identified  as follows: 1) there must be a dominant and servient tenement; (2) an easement must ‘accommodate’ the dominant tenement; (3) dominant and servient owners must be different persons and (4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

28.	There is no issue in relation to the first or last requirements. The Property is the dominant tenement; the Green is the servient tenement. It also seems to me clear that the second requirement is met. The rights claimed by Mrs Evans clearly ‘accommodate’ (in the sense of benefitting) her Property. The intimate connection between the properties and the Green is emphasised by the positive obligation on the respective owners to maintain the Green in good order and to keep the grass cut. The Green forms part of a residential estate. It is, albeit on a very much more modest scale than the gardens in the Ellenborough Park  a collective amenity area for the benefit of the neighbouring houses.   

29.	The fourth requirement is that the right claimed must be one which could have been capable of being granted by deed.  This means that the right must be within the general nature of rights capable of being created as easements, and that it must be sufficiently definite.

30.	So far as the first point is concerned, it is important to bear in mind that an easement is a right over land, and not a right to possess the land. The distinction between use and possession is not always easy to draw.  So, in Copeland v Greenhalf [1952] Ch 488 a claim to deposit and repair vehicles on a strip of land varying from 15 feet to 35 feet, leading from a village street to an orchard, failed. The court accepted that for 50 years the claimant and his father had used the strip to store a varying number of vehicles for storage and repair. But he said: ‘This claim really amounts to a claim to a joint user by the [claimant]. Practically the [claimant] is claiming the whole beneficial user of the strip of land …. He can leave as many or as few lorries there as he likes for as long as he likes….this is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner, or at any rate to joint user….’

31.	The distinction between a rights which are in the nature of easements, and claims which amount to claims to possess the land, is a questions of degree. In Wright v Macadam [1949] 2 KB 744 (not cited in Copeland) the claimant established a right to use a coal shed on the defendant’s land although the practical effect of this right was to exclude the defendant. This case was followed in Newman v Jones (unreported March 1982) where the judge said that he had no hesitation in finding a right to park a car anywhere in a defined area near the dominant tenement.
 
     Easement to park

32.	It is now accepted that a right to park is an easement, subject to the qualification that the owner of the land must still be able to make use of the parking area, either for parking or any other use, eg getting access, or services.  (Moncrieff v Jamieson [2007] 1 W.L.R. 2620, a House of Lords decision concerned with Scottish law, but in which English law was fully considered). Paradoxically, a fixed space to park is more likely to amount to possession of that part of the land (and therefore may not be an easement) than a right to park anywhere on a piece of land, or, at least, within part of that open land. Again, this is a matter of degree. 

33.	In this case, it seems to me that no question of ‘ouster’ of the dominant owner arises. The parking of cars on the Green by the Mrs Evans (and indeed by other residents) does not in any way prevent the owner of the Green from making use of the Green, by cutting the grass, keeping it in good order, ensuring that it is property drained and so on.

34.	 I am satisfied on the evidence that, over the years, cars have been parked by Mr Evans and by visitors to the Property on the Green, in an area close to the Property. In my judgment parking for up to four cases was infrequent and exceptional but I find that two cars were parked there sufficiently frequently to put the attentive owner on notice that the Green was being used in such a way as to claim a right against him. It is in the nature of a right to park (as it is with a right of way) that the user will be intermittent. I should also add that the fact that cars may not have been parked recently is nothing to the point: Mrs Evans has lived at the Property for 37 years, and an easement by lost modern grant  arose by 1997 on the facts as I have found them.

Use of the Green as an amenity area   

35.	Again, it used to be said that a right to use a garden or park merely for recreational purposes was not capable of being an easement. In Re Ellenborough Park the developers built a row of houses facing inward on a park or garden which was intended to form part of, and did form, an essential characteristic of the development belonging to each of the houses. The vendors covenanted to keep the park or garden as an ornamental pleasure garden and not, in effect, to build on this land. The issue arose as to whether this right was a right which could be enforced. The Court of Appeal held that this right was capable of being an easement, and therefore enforced. The point was made that the use and enjoyment of the park or garden was a ‘common and clearly understood conception, analogous to the use and enjoyment conferred upon member of the public, when they are open, of parks and gardens such as St James’s Park, Kew Gardens or Lincoln’s Inn Fields’. 

36.	The court went on to state the right was not merely a right which conferred pleasure, but which also was of use and benefit to the owners of the houses. The garden could be used for exercise and rest and for normal domestic purposes such as taking small children out in prams. 

37.	In Re Ellenborough Park the right was granted by deed.  In Mulvaney v Gough and others [2003] 1 W.L.R 360, the Court of Appeal upheld a prescriptive claim to enjoyment of a communal garden. The claimant owned a cottage, which was one of a group of cottages, the block being in the shape of an inverted ‘L’. Her cottage lay on the junction between a road and a strip of land running to the east of her property. Behind the cottages lay an area of land which formed the back yard of all the cottages. The issue was the extent of the claimant’s right to use the back land and the strip, both owned by the defendant.

38.	The conveyance to the claimant contained an express right of way over the back land and the strip. Over the years the claimant had tended a garden on the strip of land, consisting of a grassed area and flowers. The dispute arose when she returned home one evening to find that a JCB had removed the grass and the flowers. The defendant wanted to tarmac the strip to create a vehicular access to land to the north and east. The claimant claimed rights to ‘ cultivate, mow and otherwise enjoy the same and to hand washing’ over the strip and back yard. The defendant argued that these rights were too extensive as they amounted to shared possession of the land.

39.	The judge at first instance found on the facts that over the years the entirety of the yard was used by the residents as an amenity and garden land on a shared basis. ‘Ground rules’ or understandings grew out of the need to avoid anarchy, and this included the provision of washing lines, space for dustbins and the allocation of small flower beds.

40.	The defendant tried to distinguish Re Ellenborough Park on a number of grounds, including the fact that, in that case, the park or garden was created, controlled and maintained by the servient owners, whereas in Mulvaney, it was the various owners who controlled and maintained the area as a communal space. Their use, it was argued, was closer to the use which was claimed, and which failed, in Copeland v Greenhalf. It was also argued that the rights claimed were too vague and imprecise.

41.	The Court of Appeal rejected these arguments. Lord Justice Latham said this: ‘If it is clear from the evidence that use has been made of the land for the requisite period which is capable of amounting to an easement, it seems to me that the court should not be deflected from declaring the existence of an easement which can sensibly be formulate by the fact that, of necessity, its parameters may not be so clearly defined as they could be in a deed.’

42.	This case was followed in a decision in this jurisdiction: Crowe v Stapleton Construction Limited (June 2010, Ref/2008/1105). This was a case where express rights to use a communal garden if and when formed were in breach of the rule against perpetuities and therefore failed. However, Judge Mark held that, having regard to the user of the garden made by the Applicants since 1985, (including maintaining the garden, clearing undergrowth, holding barbecues, having an annual bonfire, etc) a prescriptive right had arisen.

43.	It follows therefore that rights of the kind claimed by Mrs Evans over the Green are capable of being easements. However, I am not satisfied, on the evidence I heard, that Mrs Evans used the Green sufficiently frequently and for the purposes claimed give rise to a prescriptive easement. Her children played on the Green until they were 10 or so (and certainly it is unlikely that they would have played on the Green or used it for recreational uses for 20 years) and no further examples of specific use made by Mrs Evans or her visitors were given in the course of the hearing, other than on occasion walking across the Green, which of itself would not give rise to an easement of the Re Ellenborough Park kind.  

44.	For all the reasons I have given above it may well be that other residents can satisfy the requirement of establishing an easement to use the Green as an amenity/garden area, but I am only concerned with the claim made by Mrs Evans.

Right of way

45.	So far as the claim to a right of way is concerned, the following points need to be made. The first is that there is no evidence of the Green having been used for vehicular access (as distinct from parking). The second is that a right of way requires a specific route, or at the very least a point of departure and a point of arrival (see Wimbledon and Putney Conservators v Dixon (1875) 1 Ch. D 362). In other words, walking across the Green in the way described by Mrs Evans, with no fixed or clear point of entry or exit, does not give rise to a right of way. A right of way is a right of passage, not a right to wander.  For this reason, the claim by Mrs Evans to use the Green as a right of way cannot, in my judgment, succeed. 

46.	Mr Benn has stated that he has no objection to the Green being used by all the residents as they have done for many years, and that use will no doubt continue. But the issue before me is whether the rights claimed are capable of being easements, and, for the reasons given, whilst a right exists to park, the other rights claimed have not been made out. 

Conclusion

47.	I will accordingly order the Chief Land Registrar to give effect to the application made by Mrs Evans, but limited only to a right to park 2 cars on the Green. In practice, and in reality, the cars will be parked on part of the Green closest to the Property, but there is no specific delineated area where parking is to take place. Other residents may also have acquired such rights and it follows too that the rights are to be exercised having regard to the neighbourly and sensible way in which the Green has been used since the estate was created.  Clearly, too, it is an incident of the right to park that the Green can be crossed on foot to get to and from the cars as of right. 

48.	As to costs, either party may make submissions in writing, if they so wish, within 14 days of receipt of this decision. My preliminary view is that the correct order is to make no order as to costs, but I will consider any representations made.

BY ORDER OF THE TRIBUNAL

Dated this 17th day of July 2015