Batchelor v Marlow

An easement cannot confer rights so extensive that the servient owner is left without any reasonable use of the land, whether for parking or another purpose. The question is one of degree, assessed by the practical effect of the rights and with common sense. An exclusive parking right may fail even though it operates only during part of each week. The owner’s remaining uses must be real and reasonable, not merely theoretical. A restriction making ownership illusory is not an easement, although it might constitute a larger or different grant. The court did not decide whether acquisition by prescription requires a different approach from an express grant.

The respondents operated a nearby garage and claimed prescriptive rights to park and store vehicles on land owned by the appellant. A Deputy High Court Judge held that the respondents had acquired an exclusive right to park up to six cars during weekday business hours and that the right was capable of subsisting as an easement.

The appellant appealed on the issue of legal capacity only. The Court of Appeal had to decide whether the exclusive, time-limited parking right left the appellant without any reasonable use of the land.

1. Appeal allowed. The Court of Appeal unanimously held that the claimed exclusive parking right was incapable of subsisting as an easement.
2. Applicable principle. The essential question was whether the right, having regard to its extent and practical operation, left the servient owner without any reasonable use of the land, whether for parking or anything else. This was a question of degree, to be determined on the facts and by common sense. The principle was consistent with the approach stated in Blenheim Estates v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 and the underlying rule identified in Dyce v Hay.
3. Application. The right was exclusive of the appellant and all other users. It covered the whole of the relevant land for six cars during nine-and-a-half hours on every working day. The appellant therefore had no reasonable use of the land for parking during the periods when parking was likely to be needed. The intermittent restriction also prevented reasonable use for any other purpose. Suggestions that the appellant could sell the land, charge for use outside business hours, park at night or concrete the surface did not provide a genuine beneficial use. The restriction made ownership of the land illusory.
4. Authorities. Copeland v Greenhalf (1952) 1 Ch. 488 was understood as involving rights that were both uncertain and too extravagant. Bilkus v London Borough of Redbridge [1968] 207 EG 803 concerned a covenant rather than an easement and therefore did not assist. The court also considered the nature of the right in Blenheim Estates unclear for present purposes.
5. The court did not decide whether a prescriptive right should be assessed differently from an expressly granted right. It proceeded on the assumption that, once the right was established, the route by which it was acquired made no difference.

Order: appeal allowed with costs; leave to appeal refused; stay granted pending an application to the House of Lords.

• Court of Appeal (Civil Division) allowed the appeal and held that the claimed exclusive parking right was incapable of being an easement.
• High Court of Justice, Chancery Division, before Mr Nicholas Warren QC sitting as Deputy High Court Judge, held that the respondents had acquired an exclusive prescriptive right to park up to six cars during weekday business hours and that it was capable of subsisting as an easement.