PROPERTY CHAMBER
FIRST-TIER TRIBUNAL
LAND REGISTRATION DIVISION
IN THE MATTER OF A
REFERENCE FROM HM LAND REGISTRY
LAND REGISTRATION
ACT 2002
REF NO 2014/0850
B E T W E E N:
GEORGINA ELLEN EVANS
Applicant
And
(1)
ANDREW LESTER BENN
(2)
BARBARA JANET BENN
Respondents
Property address: 209
Coast Road, Pevensey Bay, Pevensey and land on the east side of Marine Avenue
Title numbers:
SX59203 and SX44917
Before Judge
McAllister
Alfred Place,
London
5 June 2015
Representation: Both parties
appeared in person
DECISION
Introduction
- The issue in
this case is whether the Applicant, Mrs Evans, has acquired easements by
prescription or lost modern grant over an area of grassland (‘the Green’)
owned by the Respondents, Mr and Mrs Benn. Mrs Evans is the registered
proprietor of 209 Coast Road, Pevensey Bay (registered with title number
SX59203) (‘the Property’). Mrs Evans purchased the Property in August
1977. Mr and Mrs Benn bought the Green (forming part of title number
SX44917) by a transfer dated 29 October 2013. The application for
registration of the transfer remains pending, subject to the prior
application made by Mrs Evans on 16 October 2013.
- The Property
forms one of a number of terraced houses, numbering 197 to 213, probably
built in the late 1950s/ early 1960s, as an estate. These houses are
separated from the Green by a service road which is some three metres
wide, and which curves round from the Coast Road, allowing access at
either end. The Green, service road and other footpaths all formed part of
the estate, and are now in title SX44917, together with two other areas of
open green land.
- By her
application Mrs Evans applied for the registration of the benefit of, and
the entry of a burden on, her title and that of the Respondents of the
following easements: (a) a right of way with or without vehicles for the
benefit of the Property over the Green, (b) the right to use the Green for
parking vehicles and (c) the right to use the Green for recreational uses.
In the Statement of Truth in support of the application, Mrs Evans stated
that she had used the Green for these purposes, together with her now
deceased husband (whom she married in 1981) and family, since she
purchased the Property on 2 August 1977.
- I had the
benefit of a site visit on 4 June 2015, and heard evidence from Mrs Evans,
Mr Benn, and the owner of number 213 Coast Road, Mr Pack, who gave
evidence on behalf of Mr and Mrs Benn.
- For the
reasons set out below I will order the Chief Land Registrar to give effect
to the application in a modified form. I am satisfied that an easement to
park up to two vehicles has been acquired either by prescription or lost
modern grant, but I am not satisfied that Mrs Evans has acquired rights to
use the Green as an amenity or for recreational purposes, or a right of
way over the Green.
Background
and evidence
- Entry Number 2
in the Property Register of the Property states that the Property has the
benefit of the rights granted but is subject to the rights reserved by a
transfer dated 16 December 1963. I have obtained a copy of this transfer,
made between Dukelands Estate Ltd and Gerald Edward Moore. The Property
was then known as 11 Beachlands Coast Road. The Property was sold
together with the rights set out in the First Part of the Schedule. The
rights referred to were rights of way over the service road and footpaths
identified on the plan. These are clearly distinct from the ‘grassed area’
(the Green).
- Part IV of the
Schedule imposes certain positive obligations on the purchaser including
an obligation to ‘contribute a rateable proportion towards the expense
of maintaining and repairing the footpath and service road upon which the
said land abuts and which is used in common with the said land and other
properties abutting on the said footpath and also of keeping cut and in
good condition the grassed areas bounded by the said service road and
Coast Road.’ This obligation is imposed on the nine properties
fronting the Green.
- This is the
only reference to the Green in the 1963 Transfer. An obligation to keep
the Green in good condition does not, in my judgment, of itself carry with
it any right to use the Green for any specific purpose, other than
fulfilling that obligation. In other words, this obligation cannot be
read, in my judgment, as conferring an implied easement to use the Green
in the way claimed by Mrs Evans. But the obligation clearly indicates a
close connection between the Green and the houses. They are all part of
the same estate. I should also add that, as the covenant is a positive
one, it is unlikely that it can be enforced against the successor in title
to the original purchasers of the various properties.
- Part III of
the Schedule in the Transfer provides that no more than one dwellinghouse
and one garage are to be erected on each plot, and that such dwellings can
only be used as a private dwellinghouse. No trade manufacture or business
of any kind is to be carried out, other than the profession of solicitor,
surgeon, physician or dentist. Again, these covenants make it clear that
the original parties contemplated that the various properties should be
used only for residential and not commercial purposes.
- The Green,
(and the other greens on the Coast Road) is open and accessible to all.
It is possible to park some 12 to 15 cars on it. Although the Green shares
some characteristics with a village green or common it is clear that the
public at large do not use it as of right, and indeed are asked on
occasion to move off the land, particularly if anyone parks a car there.
- The Coast
Road is separated from the sea by a row of houses. The road is
approximately two miles long, and runs some 100 metres inland parallel to
the sea. Access to the sea is possible at a number of points. Mr and Mrs
Benn purchased 326 Coast Road in 1986, although Mr Benn has been coming to
the area for holidays since 1968.
- Mrs Evans
described the use of the Green in the following terms. In general terms,
it is used freely and frequently by all the residents of Coast
Road whose houses abut the service road. It is a general amenity area.
Children play there, picnics have taken place there; and no doubt owners
have walked their dogs, pushed prams and otherwise used the land as an
amenity. Mrs Evans, and others, made use of the Green to walk to the Coast
Road, not following any defined route. The residents kept the grass cut
and in good condition, covered a large and dangerous hole, and for a while
maintained a chain fence by the side of the road to protect children from
the road. The use of the Green has always been sensible and fair as
between the various owners. The Green has been kept in good order over the
years by the various residents. Now, Mr Benn makes a point of cutting the
grass.
- In specific
terms, though, the claim made by Mrs Evans to use the land as a communal
area for recreation, leisure and for amenity purposes is limited to the
use by her children when they were small (and therefore not for the
requisite period of 20 years) and occasionally walking across the Green to
reach the road. The route taken has varied over time: there is no fixed
point of entry or exit, and has depended on whether Mrs Evans was turning
left or right once she reached the Coast Road.
- Seven of the
nine properties overlooking the Green have converted the area immediately
outside their front door to a parking space. Mrs Evans has now built
flower beds at the front of her house, so cars cannot be parked there, or
at least it is more difficult to do so. The Green is used, generally, by
Mrs Evans and others, therefore, when more parking is needed. Residents
tend to park in the same place, as close to their property as possible. On
Mrs Evans’ evidence, as many as four cars have parked there, on the
occasion of family birthdays, special events, and when friends and family have
visited the Property. This has been the case since she purchased the
Property. It was more usual for one or two cars to be parked. The use has
been regular, if clearly not constant.
- Mrs Evans
stated that there is no defined area where she and her visitors parked and
indeed there is nothing on the Green itself to delineate or mark any
parking spaces. The semi circular shape of the Green makes it difficult to
delineate a specific area. If she or any of her family or friends found
that there someone already parked in the area where they would usually
park, then their cars would be parked somewhere else. It seems clear to me
that neighbourly tolerance has prevailed, and that no-one has considered
that they are entitled to park in any particular place. Mr Benn has seen
cars connected with the Property parked occasionally at weekends and
sometimes during the week. I fully accept the evidence given by Mrs Evans
on this point, which in any event is corroborated by Mr Benn.
- The Property
was used by Mr and Mrs Evans as a holiday home. She has spent more time
there since the death of her husband in February 2013. Before then, the
Property was used at weekends, and over the Christmas and summer holidays.
The frequency of the use of the Property has varied over time so that, for
example, when Mrs Evans’ children were small, she spent one in four weeks
there. In addition, in the early years, there were times when the Property
would be used during the week, when the shop owned by Mr Evans (who was a
master locksmith) was shut. Again, more use of the Property was made when
Mr Evans retired in 1998. Mr Evans owned two distinctive cars: an open
top Rolls Royce and a limited edition Range Rover, with a private plate.
- Mr Benn and
Mrs Benn, as I have said, purchased the Green (which forms part of title
SX4491) in October 2013. The land in the title was due to be sold by
auction, but a private sale was negotiated in advance of the auction. The
price paid was £22,000. It is clear from all the evidence I have heard and
documents I have read that there was considerable disquiet at the time of
the purchase about the possible loss of the Green as an amenity area for
the residents of the estate. Some of the residents were considering
obtaining an injunction. They were then reassured by Mr Benn that he
intended to keep the Green as an open space for the benefit of the
residents.
- When Mr Benn
became aware of the application made by Mrs Evans, he asked the neighbours
to complete a survey relating to the use made by Mrs Evans of the Green.
The introduction to the survey clearly stated that Mrs Evans intended to
claim rights over all the Green with the result that the rights of other
residents would be put in jeopardy, and that, if successful, Mrs Evans
could stop the use of others. This was not, and is not, Mrs Evans
intention: she has made it clear that her application was intended to
protect all those whose houses abut the Green. This has been clear to Land
Registry: see for instance her letter dated 8 November 2013 and the further
letter dated 12 May 2014. Mrs Evans also wrote to her neighbours on 9
December 2014, stating that she was trying to preserve the rights of
access to and use of the Green for the benefit of the two blocks of houses
abutting the Green. No replies were received to her questions.
- The covering
letter to the survey also stated that if Mrs Evans were to be successful
the Green would need to be sold. It also stated the Green is a potential
building plot within ‘the Wealden building line’ and might be developed if
sold. All the replies were to the effect that Mrs Evans did not park on
the Green: at least one said that the Green was used by Mrs Evans for
recreational purposes. Some stated that they wanted the Green to remain
unspoilt and well looked after and to be used for the benefit of the
residents. Some said that the Green has always been used by children for
playing, and for parking by visitors.
- In view of
the way in which the issue was framed, it seems to me that no real weight
can be attached to the results of the questionnaire in so far as they
purport to describe the use made by Mrs Evans.
- Mr and Mrs
Benn’s original objections to the application by Mrs Evans are set out in
a letter dated 25 November 2013 from their then solicitors. They stated that
they did not accept that Mrs Evans lived at the Property permanently; that
the Green was not used for recreational purposes; that any parking by Mrs
Evans has not been exclusive, as other residents park there as well.
- Mr Benn’s
evidence was that he knew the area well, as he had been going on holiday
in Pevesney Bay since 1968. When it became known that the Green and other
land was for sale, he decided to pay the reserve price, and to secure the
purchase. His evidence was that the Green had always been maintained but
not necessarily as well as he wanted it to be: he was anxious to maintain
the Green and the other land so as to allow the residents to use the open
spaces, as he put it, ‘with common sense, as they had always done’. The
land is insured, and he has done some work on the Green and other land,
for instance replacing the drains. He has seen the Green used by the
residents for walking dogs, and for allowing children to play, and for
parking. Mr Benn considered fencing the Green from the road, and putting
up a sign to deter members of the public from using it, but has not done
so yet.
- Mr Benn stated
that he had no objection to the residents using the Green, and indeed he
went further: if Mrs Evans had limited her claim to park to one specific area,
he would not have objected. His objection is, in great part, to the fact
that Mrs Evans has claimed rights over the entirety of the Green.
- I heard
evidence from Mr Pack, who has lived at number 213 as his permanent
address since 1998. He stated that he had never seen anyone going to or
from the Property other than one elderly gentleman (who I believe is Mrs
Evans’ cousin). If, he said, Mrs Evans was living at the Property, she
must be a ghost. He also stated that he knows every car: he keeps an eye out
for strangers parking on the Green, particularly in the summer months.
There is the remains of a metal post on the Green. There used to be a sign
saying: ‘No parking please – residents only.’
- Mr Packs’
daughter parks her car on the Green on a regular basis opposite his house.
He has cut the grass in the area outside his house. The Green, as he put
it, is used for the personal use of the residents. Mr Pack confirmed that
other residents also used the Green for parking.
- Mr Pack also
gave evidence about the events leading to the purchase by Mr and Mrs Benn.
Mr Benn assured him, and others, that he was buying the Green and other
land for the benefit of all the residents, and that his intentions were to
keep the land in good order. As Mr Pack saw it, although the Green
belongs, as a matter of law, to Mr and Mrs Benn, morally it belongs to all
the residents. The assurances given by Mr Benn meant that the residents
took no action to prevent the sale.
The law as it applies to the facts of this case
General principles
- It is settled
law that four requirements must be satisfied before there can be an
easement. In Re Ellenborough Park [1956] Ch 131 at 163 they were
identified as follows: 1) there must be a dominant and servient tenement;
(2) an easement must ‘accommodate’ the dominant tenement; (3) dominant and
servient owners must be different persons and (4) a right over land cannot
amount to an easement unless it is capable of forming the subject matter
of a grant.
- There is no
issue in relation to the first or last requirements. The Property is the
dominant tenement; the Green is the servient tenement. It also seems to me
clear that the second requirement is met. The rights claimed by Mrs Evans
clearly ‘accommodate’ (in the sense of benefitting) her Property. The
intimate connection between the properties and the Green is emphasised by
the positive obligation on the respective owners to maintain the Green in
good order and to keep the grass cut. The Green forms part of a
residential estate. It is, albeit on a very much more modest scale than
the gardens in the Ellenborough Park a collective amenity area for
the benefit of the neighbouring houses.
- The fourth
requirement is that the right claimed must be one which could have been
capable of being granted by deed. This means that the right must be
within the general nature of rights capable of being created as easements,
and that it must be sufficiently definite.
- So far as the
first point is concerned, it is important to bear in mind that an easement
is a right over land, and not a right to possess the land. The distinction
between use and possession is not always easy to draw. So, in Copeland
v Greenhalf [1952] Ch 488 a claim to deposit and repair vehicles on a
strip of land varying from 15 feet to 35 feet, leading from a village
street to an orchard, failed. The court accepted that for 50 years the
claimant and his father had used the strip to store a varying number of
vehicles for storage and repair. But he said: ‘This claim really
amounts to a claim to a joint user by the [claimant]. Practically the
[claimant] is claiming the whole beneficial user of the strip of land ….
He can leave as many or as few lorries there as he likes for as long as he
likes….this is virtually a claim to possession of the servient tenement,
if necessary to the exclusion of the owner, or at any rate to joint
user….’
- The
distinction between a rights which are in the nature of easements, and
claims which amount to claims to possess the land, is a questions of
degree. In Wright v Macadam [1949] 2 KB 744 (not cited in Copeland)
the claimant established a right to use a coal shed on the defendant’s
land although the practical effect of this right was to exclude the
defendant. This case was followed in Newman v Jones (unreported
March 1982) where the judge said that he had no hesitation in finding a
right to park a car anywhere in a defined area near the dominant tenement.
Easement
to park
- It is now
accepted that a right to park is an easement, subject to the qualification
that the owner of the land must still be able to make use of the parking
area, either for parking or any other use, eg getting access, or
services. (Moncrieff v Jamieson [2007] 1 WLR 2620, a House of
Lords decision concerned with Scottish law, but in which English law was
fully considered). Paradoxically, a fixed space to park is more likely to
amount to possession of that part of the land (and therefore may not be an
easement) than a right to park anywhere on a piece of land, or, at least,
within part of that open land. Again, this is a matter of degree.
- In this case,
it seems to me that no question of ‘ouster’ of the dominant owner arises.
The parking of cars on the Green by the Mrs Evans (and indeed by other
residents) does not in any way prevent the owner of the Green from making
use of the Green, by cutting the grass, keeping it in good order, ensuring
that it is property drained and so on.
- I am
satisfied on the evidence that, over the years, cars have been parked by
Mr Evans and by visitors to the Property on the Green, in an area close to
the Property. In my judgment parking for up to four cases was infrequent
and exceptional but I find that two cars were parked there sufficiently
frequently to put the attentive owner on notice that the Green was being
used in such a way as to claim a right against him. It is in the nature of
a right to park (as it is with a right of way) that the user will be
intermittent. I should also add that the fact that cars may not have been
parked recently is nothing to the point: Mrs Evans has lived at the
Property for 37 years, and an easement by lost modern grant arose by 1997
on the facts as I have found them.
Use of the Green as an amenity area
- Again, it used
to be said that a right to use a garden or park merely for recreational
purposes was not capable of being an easement. In Re Ellenborough Park the
developers built a row of houses facing inward on a park or garden which
was intended to form part of, and did form, an essential characteristic of
the development belonging to each of the houses. The vendors covenanted to
keep the park or garden as an ornamental pleasure garden and not, in
effect, to build on this land. The issue arose as to whether this right
was a right which could be enforced. The Court of Appeal held that this
right was capable of being an easement, and therefore enforced. The point
was made that the use and enjoyment of the park or garden was a ‘common
and clearly understood conception, analogous to the use and enjoyment
conferred upon member of the public, when they are open, of parks and
gardens such as St James’s Park, Kew Gardens or Lincoln’s Inn Fields’.
- The court went
on to state the right was not merely a right which conferred pleasure, but
which also was of use and benefit to the owners of the houses. The garden
could be used for exercise and rest and for normal domestic purposes such
as taking small children out in prams.
- In Re
Ellenborough Park the right was granted by deed. In Mulvaney v
Gough and others [2003] 1 WLR 360, the Court of Appeal upheld a
prescriptive claim to enjoyment of a communal garden. The claimant owned a
cottage, which was one of a group of cottages, the block being in the
shape of an inverted ‘L’. Her cottage lay on the junction between a road
and a strip of land running to the east of her property. Behind the
cottages lay an area of land which formed the back yard of all the
cottages. The issue was the extent of the claimant’s right to use the back
land and the strip, both owned by the defendant.
- The conveyance
to the claimant contained an express right of way over the back land and
the strip. Over the years the claimant had tended a garden on the strip of
land, consisting of a grassed area and flowers. The dispute arose when she
returned home one evening to find that a JCB had removed the grass and the
flowers. The defendant wanted to tarmac the strip to create a vehicular
access to land to the north and east. The claimant claimed rights to ‘
cultivate, mow and otherwise enjoy the same and to hand washing’ over the
strip and back yard. The defendant argued that these rights were too
extensive as they amounted to shared possession of the land.
- The judge at
first instance found on the facts that over the years the entirety of the
yard was used by the residents as an amenity and garden land on a shared
basis. ‘Ground rules’ or understandings grew out of the need to avoid
anarchy, and this included the provision of washing lines, space for
dustbins and the allocation of small flower beds.
- The defendant
tried to distinguish Re Ellenborough Park on a number of grounds,
including the fact that, in that case, the park or garden was created,
controlled and maintained by the servient owners, whereas in Mulvaney,
it was the various owners who controlled and maintained the area as a
communal space. Their use, it was argued, was closer to the use which was
claimed, and which failed, in Copeland v Greenhalf. It was also
argued that the rights claimed were too vague and imprecise.
- The Court of
Appeal rejected these arguments. Lord Justice Latham said this: ‘If it
is clear from the evidence that use has been made of the land for the
requisite period which is capable of amounting to an easement, it seems to
me that the court should not be deflected from declaring the existence of
an easement which can sensibly be formulate by the fact that, of
necessity, its parameters may not be so clearly defined as they could be
in a deed.’
- This case was
followed in a decision in this jurisdiction: Crowe v Stapleton
Construction Limited (June 2010, Ref/2008/1105). This was a case where
express rights to use a communal garden if and when formed were in breach
of the rule against perpetuities and therefore failed. However, Judge Mark
held that, having regard to the user of the garden made by the Applicants
since 1985, (including maintaining the garden, clearing undergrowth,
holding barbecues, having an annual bonfire, etc) a prescriptive right had
arisen.
- It follows
therefore that rights of the kind claimed by Mrs Evans over the Green are
capable of being easements. However, I am not satisfied, on the evidence I
heard, that Mrs Evans used the Green sufficiently frequently and for the
purposes claimed give rise to a prescriptive easement. Her children played
on the Green until they were 10 or so (and certainly it is unlikely that
they would have played on the Green or used it for recreational uses for
20 years) and no further examples of specific use made by Mrs Evans or her
visitors were given in the course of the hearing, other than on occasion walking
across the Green, which of itself would not give rise to an easement of
the Re Ellenborough Park kind.
- For all the
reasons I have given above it may well be that other residents can satisfy
the requirement of establishing an easement to use the Green as an
amenity/garden area, but I am only concerned with the claim made by Mrs
Evans.
Right of way
- So far as the
claim to a right of way is concerned, the following points need to be
made. The first is that there is no evidence of the Green having been used
for vehicular access (as distinct from parking). The second is that a
right of way requires a specific route, or at the very least a point of
departure and a point of arrival (see Wimbledon and Putney Conservators
v Dixon (1875) 1 Ch. D 362). In other words, walking across the Green
in the way described by Mrs Evans, with no fixed or clear point of entry
or exit, does not give rise to a right of way. A right of way is a right
of passage, not a right to wander. For this reason, the claim by Mrs Evans
to use the Green as a right of way cannot, in my judgment, succeed.
- Mr Benn has
stated that he has no objection to the Green being used by all the
residents as they have done for many years, and that use will no doubt
continue. But the issue before me is whether the rights claimed are
capable of being easements, and, for the reasons given, whilst a right
exists to park, the other rights claimed have not been made out.
Conclusion
- I will
accordingly order the Chief Land Registrar to give effect to the application
made by Mrs Evans, but limited only to a right to park 2 cars on the
Green. In practice, and in reality, the cars will be parked on part of the
Green closest to the Property, but there is no specific delineated area
where parking is to take place. Other residents may also have acquired
such rights and it follows too that the rights are to be exercised having
regard to the neighbourly and sensible way in which the Green has been
used since the estate was created. Clearly, too, it is an incident of the
right to park that the Green can be crossed on foot to get to and from the
cars as of right.
- As to costs,
either party may make submissions in writing, if they so wish, within 14
days of receipt of this decision. My preliminary view is that the correct
order is to make no order as to costs, but I will consider any
representations made.
BY ORDER OF THE TRIBUNAL
Dated this 17th day of July 2015
