REF/2006/0931

 

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

THE COUNCIL OF THE CITY OF WAKEFIELD

APPLICANT

 

and

 

ARTHUR JOHN SYMONDS

 

RESPONDENT

 

Property Address: Land lying to the North West of Mill Lane South Kirkby Pontefract

Title Number: WYK813325, WYK815130

 

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Leeds Employment Tribunal

On: 25 September 2007

 

 

Applicant Representation: Counsel

Respondent Representation: In person

 

 

 

 

1. I shall direct the Chief Land Registrar to give effect to the application of the Applicant, the Council, captured on the Land Registry daylist on 17 February 2006, subject as set out below, and to reject the application of the Respondent, Mr. Symonds, received on 8 March 2006. I am satisfied that the Council has established its title to the disputed land. Mr. Symonds has not established a possessory title, but has established, as owner of 86 Mill Lane, South Kirkby (“86”) a prescriptive right of way on foot and with vehicles across the disputed land going between the back of his home at 86 and the public highway and a prescriptive right to park up to two cars on that part of the land close to the back of 86 in connection with the use of 86 as a private dwelling house. To avoid any doubt, that right of way and right to park are only in connection with the use of 86 as a private dwelling house.

 

Paper title

2. Mr. Symonds is the owner of 86, having acquired it following the death of his father in about 1989. It had previously been owned by his father for as long as Mr. Symonds, who was born in 1959, could remember. Mr. Symonds had lived there all his life, initially with his parents, and, at least since 1989, with his wife and children.

 

3. At some point, which was not in evidence, Mr. Symonds’ father had acquired a significant area of land behind 86. By a conveyance dated 9 May 1974 (the 1974 conveyance), he sold two plots of land to the Council. The Council contended that one of these plots included the disputed land. In a statutory declaration dated 27 February 2006, Mr. Symonds stated that he did not believe that the land conveyed in 1974 included the disputed land, and he repeated this in evidence. Although this is not a point raised in his Statement of Case, the Council had to establish a paper title to be registered as proprietors of the land, and copies of its title deeds were included in the trial bundle. It therefore appeared to me that I ought to consider this question at the hearing. As some of the deeds in the trial bundle were illegible, further legible copies had to be produced.

 

4. The 1974 conveyance was of two plots of land. The first was described as land “containing by admeasurement (including half of a street twelve yards wide on the south-westerly side thereof and the half of a road five yards wide on the south-easterly side thereof so far as the same are respectively co-extensive therewith) 796 square yards or thereabouts ALL which said plot of land is more particularly delineated on the plan” drawn on a conveyance dated 28 February 1917 (the 1917 conveyance) to which I shall refer “and thereon coloured pink and yellow and surrounded by a red verge line. The second plot was described as land on the west side of Clayton Street South Kirkby more particularly delineated on the plan drawn on a conveyance dated 12 May 1923 (the 1923 conveyance) to which I shall refer.

 

5. A scale plan has been inserted in the copy conveyance, purporting to show a total area acquired of 0.86 acres or thereabouts and showing the land as lying between 86 to 94 Mill Lane and an area described as Allotment Gardens. Clayton Street is shown as running from Mill Lane to the Allotment Gardens, the access from Mill Lane being between 94 and 96 Mill Lane. The plan on the 1913 conveyance shows a piece of land described as being 796 square yards, including the half of the street and the half of the road as described in the 1974 conveyance. The land immediately to the north is described as belonging to Stuart Lowden’s trustees.

 

6. Although no numbers are given to the properties on Mill Lane shown on the plan and no name is given to the street 12 yards wide, I am satisfied that the land in question includes the disputed land. The 1923 conveyance appears to be of the land immediately behind that land, and the plan shows both that it borders on and includes half of Clayton Street and that that street was 36 feet, or 12 yards, wide. The area of land included is stated to be 3386 square yards and when this is added to the 796 yards conveyed in 1917, the total area is 0.86 acres or thereabouts. Finally, the vendors in the 1923 conveyance appear from the recitals to be the trustees of the estate of the late Stuart Lowden.

 

7. The plan forming part of the 1917 conveyance shows as excluded from the conveyance half a road 5 yards wide, and lying between the properties on Mill Lane and the land conveyed. It also shows the rear boundaries of 86 to 94 Mill Lane as being in a straight line bordering on the road. However, in the intervening years, an owner of 86, which was the last house in that part of the road, extended the rear boundary of 86 to the north of the boundaries of 88-94 Mill Lane, built a garage and enclosed what must have been the end of the southern half of the road. As a result, I am satisfied that the current boundary of 86 borders on the land conveyed to the council by the 1974 conveyance, and that there is no additional land which was retained by Mr. Symonds’ father when he executed the 1974 conveyance.

 

8. I therefore conclude that the Council has established its paper title to the disputed land, subject to the adverse possession claim of Mr. Symonds.

 

Changes in the area since 1923

9. At some point since 1923, Clayton Street was closed off except for the part leading to the disputed land and to the road running behind 88-94 Mill Lane, which now ends, at least as to the southern half of its width, at the southern end of the extended back garden of 86, where there is and has been for very many years, a fence.

 

10. In about 1991, the Council sold for development most of the land it had bought in 1974, retaining only the disputed land, which appears to correspond approximately, but not exactly, with the 796 square yards originally sold by the 1917 conveyance. Mr. Symonds claims a possessory title to rather over half this area.

 

11. Virtually all the evidence as to the appearance and use of the disputed land has been given by Mr. Symonds. I accept his evidence, which in the end, as it emerged at the hearing, was not challenged. Until the development took place in about 1993, the disputed land was open on two side – the side leading from what, it appears from the conveyances, had been Clayton Street, and the remaining land conveyed by his father in 1974, although Mr. Symonds has indicated that there was an earth mound which he considered formed the boundary between the disputed land and what he understood to be the Council’s land. The development took place in about 1993, after which the land was enclosed on three sides, but remained open at what I will call the Clayton Street end. It was therefore readily accessible by anybody entering it from the highway and was indistinguishable from the remainder of the land retained by the Council, except that at some point a small garage was erected on that remaining land which is outside, but on the border of, the land claimed by Mr. Symonds. At that stage, the disputed land could be accessed on either side of the garage.

 

12. Between about 1999 and 2003, Mr. Symonds decided to fence properly the land he considered that he owned. He did so slowly over those years, and by 2003, and possibly earlier, access to the disputed land was only possible through a gate to the west of the Council’s garage.

 

13. Access to the garage at the back of 86, and to other parking space on 86, has at all times been through a gate leading from the disputed land into the extended garden of 86. At some point around the early 1980’s the old garage on 86 was replaced by a new one. There was no access into 86 from the old 5 yards wide road except by going over the disputed land.

 

Use of the disputed land

14. After the sale of the land in 1974, Mr. Symonds’ father and other family members and friends continued to use the land by car to go to and from the public highway. The garage at the back of the garden was in regular use and cars were also parked both inside the garden and on part of the disputed land close to 86. This use continued throughout, with Mr. Symonds himself and his family members continuing to use the land in the same way from the time he was able to drive. It still continues on a virtually daily basis. There is no other means of access to the garage or the parking spaces within the garden.

 

15. I also accept the evidence of Mr. Symonds that his father had laid hardcore on the ground. However, that appears to have been done before 1974, while he was still the owner of the land, and it does not therefore help on the question of whether the land was exclusively possessed uninterruptedly for 12 years by him or by Mr. Symonds, or by both of them, after that time. I accept that his father, and later he himself, cut the grass on the land. I also accept that both of them had a hobby of repairing, maintaining and selling cars, which they would park, and do work to, on the land. This occurred two to three times a year, and each car would be there two or three weeks at a time, probably less frequently in his father’s case.

 

16. However, until after 1999, when Mr. Symonds began to fence the land, and use it more intensively, I am satisfied that there was nothing that he or his father did to the land that could have amounted to taking exclusive possession of it or to give any indication to any visitor to the land that that was what they intended to do. Parking cars at one side of the land, and cutting the grass, with the land open on two sides, and even when it was only open at the road end after the 1993 development to the north, does not begin to satisfy the requirements for adverse possession. Accordingly, I am satisfied that he cannot have acquired a possessory title to it. He does appear to have taken, or sought to take, possession of it in or after 1999, but the period of that possession is well short of the 12 years needed to claim a possessory title.

 

Right of way and right to park

17. It is plain that Mr. Symonds and his father have since 1974 used the disputed land, and the other land which the Council now seeks to register, to obtain access to the back of 86. I accept the evidence of Mr. Symonds that this has been done with cars and a caravan, and on foot and that the way has been exercised with vehicles is by going around the north-west side of the Council’s garage. Mr. Symonds has been under the mistaken belief that he was owner of the disputed land, which he believed had not been sold to the Council in 1974. He was under no such belief in respect of the remainder of the land which is the subject of the Council’s application and I have no reason to suppose that his father was under any misapprehension as to this, since it was he who sold the land to the Council and there is no evidence to indicate any mistake in this respect.

 

18. The regularity with which parking took place on the disputed land outside the back of 86 is illustrated by the fact that on each of the seven occasions between 1997 and 2003 when representatives of the Council went to the land and took photographs, cars, and in one case a caravan, belonging to Mr. Symonds or his visitors were parked on the land outside the back of 86.

 

19. Although in its Statement of Case the Council refers to its duty to protect public assets, and although it has asserted a duty to maintain the land, it appears never to have done anything to protect its interest in the land until 2005 and never to have carried out any maintenance on the land.

 

20. I further note, before turning to the law, that the 1974 conveyance reserves no right of way over the disputed land to the garage that was already there and that could not be accessed in any other way. It did not even reserve any right of way over the half of the 5 yards wide road sold to it, although there was no evidence before me that this was a public highway. Yet the council appears to have acquiesced in the use of the land for access to the garage for 23 years until it wrote in 1997 that the position needed to be regulated with a licence, a statement that it then conspicuously failed to follow up. I am not prepared to infer from the lack of evidence from the Applicant that nobody from the Council had visited the property before 1997 and it appears to me that the Council was prepared to acquiesce in its land being used for access and for parking in the manner that I have described as occurring before 1997.

 

21. It further appears to me to be possible, although I make no findings as to it, that this acquiescence could be explained, at least as regards the access, that this was because it had always been intended that Mr. Symonds’ father should retain a right of way to the back of his house, and probably also over the 5 yards wide road, and that it was simply bad drafting of the 1974 conveyance that led to this not being included.

 

22. Normally, the use for over 30 years between 1974 and 2006 which I have described would lead to the result that the user would have acquired a right of way over the Council’s land, and possibly also a right to park at least one car there. The Council contended, however, relying on a passage in the 6^th edition of Megarry & Wade’s The Law of Real Property, para.18-127, that user based on the mistaken belief, which Mr. Symonds had here, that he was entitled to the disputed land was not user which could give rise to a prescriptive easement. Because the whole question of an easement had been raised by me at the hearing, and because the point taken on behalf of the Council clearly required further investigation, I gave permission for further written submissions to be made by both parties. I also gave the Council the opportunity to say if it wished to adduce further evidence in relation to the claimed easements. I have received further legal submissions from the Council, but it has not sought to adduce further evidence.

 

23. The primary submission of the Council is that it would be inappropriate for specific findings as to the existence of any easements to be made. This is because Mr. Symonds’ Statement of Case is based wholly on adverse possession. Counsel for the Council has pointed out that Mr. Symonds had legal representation throughout at any rate prior to the hearing where he was unrepresented, and that the question of easements is simply not before me. The Council, he says, have approached and considered user by Mr. Symonds in these proceedings only in the context of an assertion of adverse possession. While I must make factual findings as to user appropriate to the claim of adverse possession, I should not make findings as to the quality of any user. In this respect he has persisted in his final submissions in using a Latin expression, “nec vi, nec clam, nec precario”, despite my pointing out at the hearing that the proceedings should be conducted in English so that Mr. Symonds could understand what was being said.

 

24. I see the force of what is said. However, all the evidence that Mr. Symonds could give as to rights of way and the right to park has been given, and there was at the end of the day no real issue of fact in that respect and no suggestion that any further evidence might be forthcoming as to those matters. Nor was there any suggestion that there was in fact any further evidence that might be forthcoming from the Council that would be relevant to the question of whether Mr. Symonds might have those rights. In particular, the evidence of both parties was wholly inconsistent with any suggestion that any such right was enjoyed by force (nec vi), or secretly (nec clam). If the Council had wished to raise a case that any user was by permission (nec precario) the existence of a licence or permission would have also been relevant to the question of possessory title. My understanding at the hearing was that the Council had no evidence as to the user of the land before about 1997 beyond what was put before me, and this is confirmed by its failure to seek to adduce further evidence despite being given the opportunity to do so.

 

25. I am satisfied that I can and ought to deal with the question of easements. I have had referred to me by the Chief Land Registrar the Council’s application for first registration of the land. In deciding what to direct, the evidence has disclosed a clear arguable case for prescriptive rights of was and parking either under the Prescription Act 1832 or under the doctrine of lost modern grant. If there is any such right, then any registration should be expressed to be subject to them, and I have power to require this under rule 41(2) (a) of the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003. I do not consider that anything can be gained by inviting Mr. Symonds, who is now unrepresented, to replead his case. The issues are clear. To send the matter back to the Chief Land Registrar with those issues unresolved would simply mean that he would then have to resolve them or refer the matter back to the Adjudicator. That would be a waste of time and money.

 

The alleged right of way

 

26. The Council contends that the user must be “as of right” and that that means that it must be “user qua easement or profit”. Reliance is placed on a passage from the current edition of Megarry & Wade’s The Law of Real Property, paragraph 18-127, where it is stated that

 

“User during unity of possession, ie while the claimant was in possession of both dominant and servient tenements, cannot be user as of right; nor can user enjoyed in the mistaken belief that the claimant was entitled to the servient tenement...”

 

27. Two cases are cited in Megarry and Wade as authority for that proposition, Lyell v Lord Hothfield, [1914] 3 KB 911, at pp.915-917 and Attorney General for Southern Nigeria v John Holt & Co. (Liverpool) Limited, [1915] AC 599, at pp.617 and 618.

 

28. I find the contention in that paragraph inconsistent with my own understanding of the law, as expressed in the same edition of Megarry & Wade at paragraphs 18-121 and 18-125 that (1) if long enjoyment as of right is shown, the courts will strive to uphold the right by presuming that it had a legal origin, and (2) that at the basis of a prescriptive claim is acquiescence by the owner of the servient tenement. I have particular difficulty in seeing how the acquiescence of the owner of the servient tenement could be affected by the private misapprehension of the person using the potential right of way that he was the owner of all or part of the land he was crossing.

 

29. This may be illustrated by the example of a person who owns two adjoining properties with a shared driveway in the middle. He may sell one of the properties intending to retain the driveway, but in error it is conveyed to the other party without even reserving a right of way over it. The owner continues to use the driveway for 50 years in the belief that he is the owner, and the other party permits it in the belief that the original owner has a right of way over it. The owner, or his personal representatives, may even sell his remaining property to somebody who also believes that he is buying the driveway, or indeed to somebody who is under no such misapprehension and who continues to use it as before. If the Council is right, the owner of the driveway, having acquiesced for decades, can still assert on the basis of the private belief of the other party as to ownership of the driveway, that no prescriptive easement has arisen. If, on the other hand, the owner was under no such mistaken belief, but continued to use the driveway, then a prescriptive right of way will have arisen after 20 years.

 

30. The question of unity of possession does not arise in the present case, because, at least until he started to fence the land in 1999, neither Mr. Symonds nor his father was in possession of it. As more than 20 years user had occurred by 1999, no question of unity of possession could affect the acquisition of easements by that date under the doctrine of lost modern grant.

 

31. So far as Mr. Symonds’ belief that he owned the land was concerned, there is no evidence that his father had any such belief during his lifetime and no suggestion that Mr. Symonds told the Council of his belief before late 1997, again more than 20 years after 1974. The question which I must therefore decide in this case is whether the mistaken belief of Mr. Symonds, during the years from his father’s death in 1989 until the expiration of 20 years from the sale in 1974, prevented him from acquiring an easement that he would have acquired but for his private belief.

 

32. In Bridle v. Ruby, [1989] 1 QB 169, access over a driveway was exercised in the mistaken belief that a right of way over the driveway had been reserved in a conveyance in 1956. Parker LJ, at pp.174-175, cited passages from the judgments of Brett and Cotton LJJ in Earl de la Warr v. Miles (1881), 17 ChD 535, at pp.594 and 597.

 

33. The latter case involved a claim to a prescriptive right to take litter, and it was contended that the claim must fail because the litter had been taken by reason of an erroneous belief that a certain decree conferred that right. It was held that, per Brett LJ, “the defendants and their predecessors, whatever view they took of their rights, at all events assumed to take litter as a matter of right whether the lord permitted them or not, and in my opinion the view they took of their right is not material.” Cotton LJ was of a similar view, stating that “it is not necessary under the statute that the acts done should at the time have been attempted to be justified in a way in which we think they can legally be justified, if the person doing them was claiming to do them as of right. What particular right the persons doing the acts alleged, unless there was permission from time to time given by the lord, in my opinion is not material under the statute.”

 

34. After referring to that case, and to other authorities which were said to be to the contrary effect, Parker LJ continued at [1989] 1 QB 177D, “There are certain passages in the judgments in such cases which suggest that a user cannot be adverse if it is believed mistakenly to be rightful, but this cannot be right.... To go so far as to say that no user based on a mistaken belief in a right could found a claim to prescription would be to say that the law will only presume a grant or allow a claim to prescription at common law in favour of someone who is aware he is a wrongdoer.” He concluded that the mistaken belief was not inconsistent with acquisition of an easement under the doctrine of lost modern grant.

 

35. Ralph Gibson LJ agreed and stated, at p.178:

 

“For mistake as to the origin of the right asserted by the user to be relevant, it seems to me that it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted. The requirement that user be “as of right” means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owner’s permission... The fact that the claimant mistakenly thinks that he derived the right, which he is openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right.

 

People who assert rights, such as rights of way, may well be, and I am sure often are, mistaken as to many aspects of the law which determines the existence of such rights. The nature of some mistakes as to the legal origin of the right asserted may be such that the court, in considering issues of fact as to the alleged acts of enjoyment, and in considering whether the user was “as of right”, will find the mistake a relevant factor in deciding those issues of fact. I see no reason, however, to attach any significance to the mere fact of such subjective mistakes which, as in this case, are not shown to have affected the conduct of the claimant or the understanding of that conduct by the owner of the land over which the right is asserted.”

 

36. Caulfield J agreed with both judgments.
37. While it is true that in the present case, Mr. Symonds and his father both from time to time trespassed on the land in other ways, in particular by occasionally leaving vehicles on the land which they were repairing to sell, there was no real change of user after the death of Mr. Symonds’ father and the expiry of the 20 years period necessary to establish an easement under the doctrine of lost modern grant. Nor is there any evidence that the Council was ever aware of any such further trespass or that it was misled in any way by it. Indeed, there is no evidence that the Council paid the slightest attention to the land until 1997, except that it sold most of the rest of its land in 1991.

 

38. Mr. Symonds’ mistaken belief, prior to 1997, to apply the words of Ralph Gibson LJ, did not affect his conduct in relation to the land. He continued as his father had done. Nor did that mistaken belief affect the Council’s understanding of that conduct, as the Council was not aware until 1997 of that mistaken belief.

 

39. In those circumstances, unless compelled by authority, I can see no reason to allow Mr. Symonds’ mistaken belief to affect his actual entitlement. Counsel for the Council has contended that Bridle v. Ruby is to be distinguished on the ground that the mistaken belief there was as to the existence of an easement, whereas the mistaken belief in the present case is that Mr. Symonds owned the land over which he obtained access to 86. I cannot find any such distinction in the reasons for the decision in that case, as set out in the passages from the judgments that I have cited. Although the case itself did concern a mistaken belief as to an easement, the reasoning appears to me to be equally applicable to a subjective error as to ownership. If not, then the unsatisfactory results can be seen both from the example given by me in paragraph 29 above, and by considering the result in the present case, where a right of way will have been acquired up to the unmarked boundary, unidentified except in Mr. Symonds’ mind, of the land which he thought he owned, but not beyond. That would be the case, on the basis of the distinction put forward on behalf of the Council, even if the misunderstanding as to ownership was as to no more than three or four feet of land at one end of a lengthy driveway.

 

40. I turn, therefore, to the two authorities relied on by the Council. In Attorney-General of Southern Nigeria v. John Holt & Company (Liverpool) Limited, [1915] AC 599, the Judicial Committee of the Privy Council was considering a dispute where the respondents had been granted land by the Crown in 1861 which was described as bounded by the sea. Land had been reclaimed from the sea after 1861 and had been occupied and built on for a period of 30-50 years by the respondents, with the knowledge of the Crown. The Respondent had exclusive possession of the reclaimed land and had used the stores and sheds on it for the purposes of its business. The contention made by counsel for the Crown, at p.603 of the report, was that the respondents were in exclusive possession of the reclaimed land and could not therefore acquire an easement over it by prescription. Reliance was placed on Lyell v. Lord Hothfield, 1914] 2 KB 911. It is clear that had the case been in relation to English land, a possessory title would have been obtained by the Respondents, but the limitation period in Southern Nigeria was 60 years, which had not expired (see [1915] AC, at the foot of p.606). The Judicial Committee found that what was done by the respondents was done by them as on their own lands. There could be no easement, because there was no dominant and no servient tenement. At p.617-618, Lord Shaw of Dunfermline stated, in delivering the opinion of the Judicial Committee:

“It seems to be undoubtedly true that what was done by the respondents was done by them as in their opinion upon their own lands. There was much in the nature of affairs and the legal situation to induce this opinion, and it is not to be wondered at that not only they, but all parties on the island, appear to have considered these operations, which were clearly beneficial to the general interest, in no way to be of the nature of wilful appropriation or of trespass, but merely of making good and proper use of their rights as owners of property abutting upon the sea. An easement, however, is constituted over a servient tenement in favour of a dominant tenement. In substance the owner of the dominant tenement throughout admits that the property is in another, and that the right being built up or asserted is the right over the property of that other. In the present case this was not so.”

 

41. The Judicial Committee went on to agree with the findings of the court below that the reclamation and building work had been done with the knowledge and permission of the Crown, and that the respondent was entitled to an irrevocable licence to continue to use the land.

 

42. In my judgment, the finding which I have cited above must be read in context. This was a case in which everybody was proceeding on the basis that the land belonged to, and could be built upon by, the respondent and used as its own property, and that was what happened. Nor was it simply being used for the benefit of the land actually owned by the respondent. It is a very different case from the present one, where neither Mr. Symonds nor his father was in possession of the land and, apart from other minor and occasional acts of trespass, the use to which the land was put was consistently for the benefit of 86. I am unable to read the passage cited as requiring that there should be some express admission that the servient tenement is owned by another, so long as nothing is done to assert that it is not so owned. The Judicial Committee was not considering circumstances in which there was no more than a private subjective and mistaken view on the part of one party as to who owned land that he did not occupy, and which was not reflected in the activities carried out on it.

 

43. Lyell v. Lord Hothfield, [1914] 3 KB 911, does not, in my judgment, take the Council’s case any further. In that case there were two warring parties, each claiming title to land which each sought to pasture sheep on. So far from the view as to ownership being a purely subjective and undisclosed one, the claim to ownership had been asserted throughout the dispute for many years. Counsel for the Council has pointed out that the case was cited by counsel in Bridle v. Ruby, but was not even referred to in the judgments. He submitted that this was because it dealt with a different situation, in that it dealt with a claim to ownership of the land. Had that been the case, then I consider that at least one member of the Court of Appeal would have explained this in his judgment, and would not have given the reasons that were given without qualifying them. In my judgment, the crucial distinction, which made Lyell v. Hothfield irrelevant, was that in that case the intention was not purely subjective and unexpressed.

 

44. It appears to me that in the circumstances of this case, for the reasons that I have given, the subjective belief of Mr Symonds cannot have affected his acquisition of the right of way or of a right to park by 1994 under the doctrine of lost modern grant. This appears to me to be in accordance both with the general principle recited in the passage from Megarry & Wade to which I refer in paragraph 28 above and with the decision of the Court of Appeal in Bridle v. Ruby. It is only after that time, and indeed only from about 1997 that Mr. Symonds acted so as to lead the Council to understand that he was claiming title to the disputed land, and by that time, the easements had already been acquired by prescription and could not be lost as a result of the new claim.

 

45. The right of way is clearly a right with and without vehicles from the highway to the rear of 86. It is exercisable without remaining on the Council’s land, as vehicular access has always been available to the rear of 86 from the Council’s land and that access has regularly been used.

 

46. The right to park is contested, however, on the additional ground that the right was too extensive in that it was essentially a right claimed to park in the small area of the land sold to the Council in 1974 close to 86. It is said that the right claimed is too extensive because the Council could not make any reasonable use of that small area or of the land now retained by it as a whole when cars are parked there.

 

47. In London & Blenheim Estates Ltd. v. Ladbroke Retail Parks Ltd., [1992] 1 WLR 1278, Judge Paul Baker QC held that the right to park cars could exist as an easement provided that, in relation to the area over which it was granted, it was not such that it would leave the servient owner without any reasonable use of his land. However, it is plain from the reliance which the judge placed on the decision of the Court of Appeal in Wright v. Macadam. [1949] 2 KB 744, that the land he was referring to was the whole of the servient owner’s land and not some small part over which the easement was granted. Wright v. Macadam was a case in which an easement of storage was granted over a coal shed in a garden, and at p.1285G, Judge Baker held that that case showed “that a valid easement can subsist which involves the exclusive occupation of a shed or other piece of the servient tenement”.

 

48. In the present case, the area over which the right to park is claimed was a small part of the Council’s land, and indeed the remainder of the land has been sold off and built upon. In view of the fact that I must look at a lost modern grant, hypothetically granted in 1974, the total area of land that I must look at includes, in my judgment, all the land sold to the Council at that time. To limit the land to be considered to the remaining unsold land would make the acquisition of the right to park dependent on whether the servient owner chooses to retain the other land or to sell it. Indeed, it would presumably make a difference whether the servient owner leased or sold the freehold title to the other land.

 

49. Even, however, if I were to look at the smaller area of 796 square yards or thereabouts now retained by the Council, it includes, for example, the garage erected on it, and both the oral and visual evidence in the case shows that other vehicles have parked on the half of the land claimed by Mr. Symonds, Mr. Symonds and his father have worked on that part of the land and a structure has been erected on it. Having inspected the land, it appears to me that, while the use of the land will be restricted by the existence of a right to park, it is not possible to say that the Council would be left without reasonable use of the land as a whole for parking or for any other reasonable purpose.

 

50. I note that, since I heard this case, the House of Lords has given judgment in Moncrieff v. Jamieson, [2007] UKHL 42. I note in particular, that at paragraph 59, Lord Scott questions the test formulated by Judge Baker and applied by the Court of Appeal in Batchelor v. Marlow, [2003] 1 WLR 764, but in doing so, he expresses the view that there is no reason why an owner should not grant an easement to park 9 cars on land which is only capable of accommodating that number of cars.

 

51. I also note that Lord Neuberger held at paragraph 140 that, as then advised, was not satisfied that a right was prevented from being a servitude (in Scotland) or an easement simply because the right granted would involve the servient owner being effectively excluded from the property. However, for the reasons given, I do not find it necessary to consider the legal effect of that decision, which essentially related to Scottish law, on the right to park in English law, since even applying the more restrictive test set out above, I am satisfied that Mr. Symonds has established his right to park.

 

52. Finally, counsel for the Council has contended that the right to park, if established, should be restricted to by reference to the actual user, which he asserts, is that Mr. Symonds parks two to three cars per annum with each car being present for two to three weeks at a time, and with the use being less frequent in Mr. Symonds’ father’s day.

 

53. That was not in fact Mr. Symonds’ evidence. His evidence was that cars were regularly parked on the land, but that additionally, in the course of a hobby of restoring and selling cars, two to three cars a year were parked as described by counsel, while being repaired and then sold. I note that when representatives of the Council have visited and taken photographs over the years from 1997, there have always been cars parked there, and I accept Mr. Symonds’ evidence at the hearing that he and his father and other family members and visitors to 86 parked their cars on the land at the back of 86, and it appears from the Council’s own photographs that cars were regularly parked there from 1997, most of which Mr. Symonds identified as his and his family’s personal cars, and on one occasion, Mr. Symonds’ caravan was also parked there.

 

54. I accept that evidence and I find that there was regular parking over the years in connection with the use of 86, and that an easement to park by way of lost modern grant has been established. The evidence was that the parking was not normally of more than one or two cars, but that more might occasionally be parked there. It seems to me that the easement that has been established is a right to park up to two cars. I do not consider that the Council can be taken to have acquiesced in any more extensive use because of the occasional parking of extra cars or of a caravan on the land. However, the use extends over the whole year and is not limited as counsel has contended.

 

55. Subject to any submissions which may be made as to costs, my present impression is that there should be no order as to costs. At the end of the day, there was no factual dispute of any significance. The Council has succeeded in establishing its title to the land, but subject to significant rights over the land in favour of Mr. Symonds which the Council has resisted unsuccessfully.

 

Dated this 23^rd day of November 2007

 

 

By Order of The Adjudicator to HM Land Registry