REF/2015/0174
PROPERTY CHAMBER LAND REGISTRATION
FIRST-TIER TRIBUNAL
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
MICHAEL MOORE (AUTOMOBILES) LIMITED

APPLICANT
and

BP OIL (UK) LIMITED
RESPONDENT

Property Address: Land lying to the east of Bagshot Road, Bracknell

Title Numbers: BK229787 and BK194371
Before: Judge Owen Rhys
Sitting at:  10 Alfred Place, London
On: 1st September 2015
Applicant representation:	Mr Michael Moore, Director 
Respondent representation:	Mr Ian Clarke of Counsel instructed by Addleshaw Goddard LLP Solicitors 
	
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D E C I S I O N
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1.	The Applicant is the proprietor of a square block of land on the east side of Bagshot Road, Bracknell, Berkshire registered under freehold title number BK 194283.  The western section of the title, with a direct frontage to Bagshot Road itself (“the Petrol Sttaion”), is subject to a 99-year lease commencing on 12th March 1982 (“the Long Lease”).  The Long Lease is separately registered as the leasehold title BK194371 in the Respondent’s name and the land comprised within it is operated as a petrol station.  The eastern section of BK194283 (“the Car Showroom”) contains a car showroom and ancillary facilities and car parking.  It has no direct access to Bagshot Road, but has the benefit of an express right of way over the Petrol Station along the roadways coloured brown on the plan to the Long Lease (“the Access Roads”).  The Access Roads are clearly visible on the aerial photograph supplied by the Applicant [Tab 3/56], and form a splayed entry from and exit onto the southbound lane of Bagshot Road, which is a dual carriageway.  The Applicant is also the registered proprietor of a parcel of land lying to the north of BK194283 and registered under title number BK229787 (“the Car Park”).  The Car Park adjoins the Car Showroom and the Petrol Station to the south, but has no direct frontage to Bagshot Road.  It was transferred to the Applicant in 1990.  Planning permission had been obtained in 1984 for its use as a car park and car display area, although it has subsequently been used for a number of other purposes, including a car wash.

2.	By an application in Form AP1 dated 2nd October 2014 (“the Application”), the Applicant applied to register a prescriptive easement over the Petrol Station in favour of the Car Park.  It was supported by a Statement of Truth (“ST4”) made by a Director of and major shareholder in the Applicant, Mr Michael Moore, in which he said this:  “The means of access to the [Car Park] has from March 1985 until the present date been across the land shown hatched black on the plan attached hereto marked MFM2 via the land owned by [the Applicant] and within Title No.BK194283.  Access into the [Car Park] has been between the points marked X and Y on the plan marked MFM2 hereto, leading from the adjoining BP petrol site.  Principally access into and out of the [Car Park] areas shown by the arrows marked “In” and “Out” on the plan…”  The land hatched black is, in effect, both Access Roads, and the points marked X and Y lie on the boundary between the Car Showroom and the Car Park.  Accordingly, the Applicant claims a right of way over the Access Ways, into the Car Showroom and from there into the Car Park.

3.	The history of the claimed prescriptive user, as set out by Mr Moore in his ST4, may be summarised as follows:
a.	Personal use between March 1985 and April 1989.  Mr Moore owned the Car Park in his personal capacity before transferring it to the Applicant in 1989.
b.	Use by tenants – Action 2000 Investments Limited – between April 1989 and February 2001.
c.	No use between February and December 2001.
d.	Use by tenants – Greenoaks (Maidenhead) Limited – between December 2001 and June 2008.
e.	No use between June 2008 and July 2009 other than “regular visits to the Site ensuring that it remained unoccupied”.
f.	Use by tenants – Blackwater Motor Company Limited – from August 2009 to November 2012.
g.	Use by squatters from November 2012 until December 2013.
h.	Use by tenants – Wash Me Clean Limited – to date. 

4.	The Respondent objected to the Application on 11th November 2014, and on 5th March 2015 the Chief Land Registrar referred the dispute to the Tribunal.  The Applicant’s Statement of Case was served on 2nd April 2015, and the Respondent replied on 5th May 2015.  By paragraph 22 of its Statement of Case, the Respondent took the point that the Applicant, as freeholder of the Petrol Station, was unable as a matter of law to acquire any prescriptive rights over it.  In the light of this contention, the Tribunal wrote to the parties on 27th May 2015 proposing that a preliminary issue should be directed in these terms: “As a matter of law, can the Applicant obtain a right of way by prescription over land leased to the Respondent notwithstanding that the Applicant is the freehold owner of the land in question?”.    Both parties agreed that such a direction should be made, and a half day hearing was listed for the preliminary issue.  Skeleton arguments were lodged and exchanged.  The Applicant was represented by a Director and its principal shareholder, Mr Michael Moore, and the Respondent by Mr Ian Clarke of Counsel.

5.	For the purposes of the preliminary issue, the Respondent accepted that the Tribunal was bound to treat the factual allegations made by the Applicant as true.  The issue was essentially one of law, proceeding on the footing that the Applicant would be able to prove all the factual allegations made in support of the claim.  The critical legal issues were identified by Mr Clarke at paragraphs 10 and 11 of his Skeleton Argument.  First, the “fee simple rule”.  For an easement to be acquired by prescription, there must be user as of right by one fee simple owner against another fee simple owner.  This rule applies whatever the legal basis of the claim, be it at common law (see Bright v Walker (1834) 1 Cr.M. & R 211 at 221 and Cory v Davies [1923] 2 Ch. 95), under the doctrine of lost modern grant (Simmons v Dobson [1991] 1 WLR 720 at 724) or by virtue of the Prescription Act 1832 (Kilgour v Gaddes [1904] 1 KB 457 at 460).

6.	An application of the “fee simple rule” is “the common landlord rule”, which is Mr Clarke’s second point.  He cites this passage from Megarry’s Law of Real Property (8th ed.) at 28-056: “It follows that a tenant cannot prescribe for an easement over his landlord’s adjacent land, for the landlord can have no right against himself”, relying on a decision of Lord Cairns LC in Gayford v Moffat (1868) 4 Ch. App 133. These rules have been the subject of some criticism, on the grounds that they are unduly restrictive and inimical to the entire rationale of the doctrine of prescription.  The judgment of Lord Millett in China Field Limited v Appeal Tribunal (Buildings) [2009] HKCU 1650 at [54] (a decision of the Hong Kong Court of Final Appeal) contains particularly trenchant criticism.  However, despite these criticisms, the relevant authorities, remain good law in England and Wales and there is no doubt that both the “fee simple rule” and the “common landlord rule” continue to apply to claims to prescriptive easements.  In this connection, Mr Clarke pointed put that the Law Commission, in its recent Report on Easements “Making Land Work” (No. 327), specifically considered the criticisms of these rules and decided not to recommend any change – see paragraphs 3.124-3.129.

7.	On the basis of the above authorities, Mr Clarke submits that it is impossible for the Applicant to succeed in its claim to a prescriptive right of way over the Petrol Station.  It relies on long user since 1989 of access over the Petrol Station by various tenants of the Car Park.  Since the Applicant has been the reversioner both of the Petrol Station since 1983, and of the Car Park since 1990, this user runs up against the common landlord rule. There has been no continuous 20-year period of user as of right, enjoyed by anyone other than a tenant of the common landlord, namely the Applicant.  Such user must be discounted in calculating the period of long user.  Consequently, there has been no qualifying user as of right.  Thus runs Mr Clarke’s argument.

8.	Mr Moore, doing his best on behalf of the Applicant, had no real answer to these legal arguments.  He pointed out that the Respondent had not until recently objected to the use of the Access Roads to serve the Car Park, and had, it seems, at one stage been prepared to negotiate with a view to granting an easement.  He also pointed out that the Car Park was effectively land-locked as far as vehicles are concerned, without access to Bagshot Road via the Petrol Station.  He submitted that the Respondent’s refusal to accept the existence of an easement had caused a potential purchaser of the Car Park to withdraw from an agreed sale. Mr Clarke countered with the observation that the Long Lease had already been granted when the Applicant (and Mr Moore before it) had purchased the Car Park, so it was or should always have been known that the Car Park did not have any lawful access rights to and from Bagshot Road.  Essentially, Mr Moore argued that the Respondent’s position was unfair and unreasonable, and the existence of a legal easement in favour of the Car Park over the Petrol Station would have no practical or commercial downside from its point of view.

9.	Whilst the Tribunal might have a degree of sympathy for the Applicant, there is no answer to the legal objections advanced by the Respondent.  I consider that Mr Clarke’s analysis of the law is accurate, and the legal principle conveniently summarised as the “common landlord rule” prevents the Applicant from relying on any proven user of the Petrol Station access as enjoyed by tenants of the Car Park.  Even if the user had been by the Applicant itself, the “fee simple rule” would have defeated the claim.  The fact is that the Applicant is seeking to obtain a prescriptive easement against itself, which is impossible as a matter of law. It follows that the Application must fail.

10.	I would add that the Applicant would have had considerable difficulty in proving its case, even if the matter had gone ahead.  Since it has a legal right of way over the Petrol Station, reserved by the Long Lease, any user in favour of the Car Park might well be regarded as ambiguous.  It would be difficult to isolate acts of user which derived from the existing easement from prescriptive user in favour of the Car Park.  However, the question does not arise, since I propose to direct the Chief Land Registrar to cancel the Application on the grounds that it is bound to fail.  I make this order under the combined powers conferred by Rule 6(g) and 9(3)(e) of the Tribunal Procedure (First tier tribunal)(Property Chamber) Rules 2013.

11.	In view of the outcome, I consider that the Applicant should pay the Respondent’s costs.  I direct the Respondent to file a Costs Statement within 7 days.  The Applicant may file and serve submissions on costs – both as to the principle that it should pay the costs, and as to the amounts claimed – within 14 days of receiving the Costs Statement.  Any response by the Respondent is to be filed and served 7 days thereafter.  I shall then consider the matter further.  

Dated this 30th day of September 2015

BY ORDER OF THE TRIBUNAL