Peter Nigel Joseph Stenner v Teignbridge District Council

Whether a claimed easement is too extensive to be an easement depends on whether, viewed as a matter of fact and degree, it would leave the servient owner without any reasonable use of the servient land. For an intermittent easement, the question is assessed by reference to the period during which the easement operates. Time when the land is unburdened by the claimed right is excluded. The appellate court will interfere with the first-instance tribunal’s evaluative assessment only for a significant error or if it was plainly wrong. An easement of storage is capable of existing in principle, but a right which gives the dominant owner the whole beneficial use of the servient land during the relevant period is not capable of being an easement.

The appellant sought registration of a prescriptive easement over part of a council car park. The claimed right was to store up to six boats and associated equipment, and to carry out maintenance, from 1 October to 31 May each year.

The First-tier Tribunal found that the appellant had established the required period of use and that the use had been as of right. It nevertheless rejected the claim because the boats would occupy the whole of the relevant area during the eight-month period, leaving the council without any reasonable use of it. The appellant appealed on grounds concerning the authorities relied upon, alternative uses of the land, the seasonal nature of the right, and the effect of earlier storage and parking cases.

1. Appeal dismissed. The FTT had asked the correct question: whether the claimed right would leave the servient owner without any reasonable use of the relevant land. That was the test formulated in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 and adopted in Batchelor v Marlow [2001] EWCA Civ 1051.
2. The question was one of fact and degree. Under P&S Platt Ltd v Crouch [2003] EWCA Civ 1110, interference was justified only if the FTT had made a significant error or was plainly wrong. The appellant failed to establish either.
3. The seasonal nature of the claimed right did not assist the appellant. Because the easement was intermittent, the Ouster Question had to be answered by reference to the eight months in which the right would operate. The four months when no easement was claimed could not be used to offset the loss of use during the Relevant Period.
4. The FTT was entitled to find that storing six boats, equipment and carrying out maintenance would occupy the Triangle to the exclusion of other reasonable uses. Possible pedestrian access, resurfacing, fencing, parking, licences and other suggested uses did not alter that conclusion. The FTT’s comparison with Copeland v Greenhalf [1952] Ch 488 was an evaluative judgment open to it.
5. Wright v Macadam [1949] 2 KB 744 established that an easement of storage could exist in principle. It did not decide the separate ouster issue. The criticisms of the ouster principle in Moncrieff v Jamieson [2007] UKHL 42 did not overrule Batchelor, which remained binding.
6. The observation in Montrose Court Holdings Ltd v Shamash [2006] EWCA Civ 251 was obiter but could properly reinforce the conclusion, given that the claimed exclusion lasted for eight months each year.

• First-tier Tribunal (Property Chamber): By decision and order dated 30 October 2024, directed cancellation of the appellant’s application to register the benefit and burden of the claimed prescriptive easement.
• Upper Tribunal (Lands Chamber): Permission to appeal was granted on 24 February 2025. The appeal was dismissed.