Extensive easements: The problematic principle on parking

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The ouster principle is particularly problematic in regard to parking rights which are extensive in nature and therefore serves little purpose within this context. This is argued through analysing the uncertainties when applying the ouster principle in practice. Following this, it is submitted that an approach allowing more extensive rights, that do not confer exclusive possession, provides more certainty and greater coherence and eliminates difficult distinctions. Furthermore, it is demonstrated that the courts are now more reluctant to apply the ouster principle in the strict sense visualised in Batchelor.

Part I: The ambiguous ‘reasonable use’ test

The ouster principle is unclear in its extent and therefore proves particularly problematic in application to car parking rights. As recognised by Lord Scott in Moncrieff,[1] the ouster principle is where a right is incapable of forming an easement as it is too extensive and ‘prevents any reasonable use being made of the servient land’.[2] This test was applied in Batchelor v Marlow where a right to park vehicles on an area of land for nine and a half hours every working day was incapable of forming an easement.[3] It was held the owner was left ‘without any reasonable use of his land’, whether for parking or anything else.[4] It was recognised that this extensive restriction rendered ownership of the land illusory.

Despite this reasoning, application of the ‘reasonable use’ test is not always straightforward. Although it is clear that a right that grants exclusive possession is too extensive, it is submitted that drawing the line between where there is and is not ‘reasonable use’ is, in many circumstances, unclear. Consequently, the boundary for when a parking right is too extensive may turn on illogical distinctions.[5] Arguably, despite the extensive nature of the parking right in Batchelor, there were other conceivable ways the land could have been used, such as for advertising.[6] Furthermore, it is also unclear why the possibility of use of the land at weekends was disregarded by the courts.[7] Therefore, many of these questions present the inherent difficulties in the decision in Batchelor. Consequently, Batchelor provides little determinative guidance on what constitutes ‘reasonable use’. As a result, this makes application of the ouster principle problematic and risks inconsistent application. This is of particular concern with regard to parking rights which are extensive uses of land in comparison to other easements.[8] Therefore, the ouster principle is not particularly useful in the context of parking rights.

Part II: Extending the ouster principle

With focus on the expressed need for consistency and coherency, it is submitted that easements which do not grant exclusive possession, even if it deprives the owner of much reasonable use, should be valid. This approach, allowing more extensive rights, aligns with the obiter comments of Lord Scott in Moncrieff v Jamieson. Lord Scott suggested that the relevant question should be whether the alleged easement deprives the owner of ‘possession and control’ of their land.[9] Accordingly, this would expand the scope of easements to more extensive rights, as long as they do not confer exclusive possession. Although Moncrieff is not strictly binding, it remains highly persuasive. This approach is preferable in contrast to Batchelor. An approach, recognising more extensive rights, would offer much more clarity in this much-litigated area, providing a more definitive boundary for a right which is too extensive.[10] Following this, it would eliminate any difficult distinctions as discussed in regard to the ‘reasonable use’ test under Batchelor.

However, Lord Scott’s test was challenged by Lord Neuberger, who expressed concerns in regard to occupational licences being ‘elevated’ into proprietary rights with uncertain consequences.[11] However, in response to this, Amy Goymour highlights that the requirement for easements to benefit a dominant tenement would prevent licences unattached to a dominant plot acquiring proprietary status.[12] Therefore, in absence of further concerns, Lord Scott’s test has much merit. Furthermore, as recognised by Lord Scott, it is difficult to justify why an assessment of the unburdened land is determinative of whether an easement can exist over a burdened part.[13] In the absence of a justification, an approach endorsing the acceptance of extensive rights that fall short of exclusive possession is welcome. This approach is much more useful in the context of car parking rights and provides greater clarity.

Part III: The explicit adoption of a more extensive approach

Support for the recognition of more extensive parking rights is now more evident in the approach adopted by courts. Although Batchelor still remains binding precedent, the High Court in Virdi v Chana demonstrated a judicial willingness to avoid being bound by Batchelor’s inherent inadequacies.[14] In Virdi a right to park over a single parking space was held not to render ownership illusory.[15] Judge Purle QC recognised sustained reasonable use of the land in the ability of the servient owner to plant and tend to a tree, repair and replace fences and signage on the land, thus preventing ouster occurring.[16] Consequently, it appears Batchelor’s highly criticised approach was circumvented. Therefore, it is clear with overwhelming criticism and lack of support for the ouster principle, it seems unlikely judges will accept defeat and strictly apply Batchelor.[17] Moreover, the Law Commission has proposed the abolition of the problematic and uncertain ouster principle.[18] However, it is contended that abolition of the ouster principle in its entirety may cause more serious problems beyond the scope of parking rights.[19] Therefore, any legislative action should clearly be restricted in its scope to parking rights. Alternatively, given the criticisms of the ouster principle, it is plausible to allow the common law to eventually overrule or distinguish Batchelor out of existence.[20] Conclusively, the ouster principle is no longer supported.

Conclusion

Overall, the ouster principle poses concerns of uncertainty and inconsistency in the context of extensive parking rights. An approach that recognises more extensive rights, that do not grant exclusive possession, is welcome. Such an approach would resolve the difficulties of the ‘reasonable use’ test and application of the ouster principle which results in difficult distinctions. Indeed, courts are already tending away from this problematic approach, and therefore it seems the ouster principle can no longer survive, at least in the context of parking rights.


[1] Moncrieff v Jamieson [2007] UKHL 42.

[2] ibid [47].

[3] Batchelor v Marlow [2001] EWCA Civ 1051.

[4] ibid [8].

[5] Alexander Hill-Smith, ‘Rights of parking and the ouster principle after Batchelor v Marlow’ (2007) Conv 223.

[6] ibid, 233.

[7] ibid, 233.

[8] Lu Xu, ‘Easement of car parking: the ouster principle is out but problems may aggravate’ (2012) 4 Conv 291.

[9] Moncrieff v Jamieson (n 1) [59].

[10] Amy Goymour, ‘Easements, servitudes, and the right to park’ (2008) 67(1) CLJ 20, 21.

[11] ibid, 21.

[12] ibid, 22.

[13] Moncrieff v Jamieson (n 1) [59-60].

[14] Lu Xu, ‘Easement of car parking: the ouster principle is out but problems may aggravate’ (2012) 4 Conv 291, 305.

[15] Virdi v Chana [2008] EWHC 2901 (Ch).

[16] ibid [20].

[17] Lu Xu (n 14), 305.

[18] Law Commission, ‘Making land work: easements, covenants and profits a prendre’ (Law Commission No 327, 2011) 3.208.

[19]  Lu Xu (n 14), 306.

[20] Alexander Hill-Smith (n 5), 234.

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