Supreme Court gives permission for leapfrog appeal concerning disputed easement over council-owned car park

According to the court, the issue in Stenner v Teignbridge District Council is: What is the correct test the courts should adopt when applying the “Ouster Principle” in the context of determining whether a purported easement is capable of forming the subject matter of a grant (and therefore valid)?

The appeal concerns a disputed easement over part of a car park located in Teignmouth, Devon.

The appellant, Peter Stenner, is the registered freehold proprietor of three beach huts.

The respondent council is the registered freehold proprietor of a substantial area of land in Teignmouth, part of which comprises a car park known as Lower Point Car Park.

The land which is the subject matter of the disputed easement is a small and roughly triangular area of the car park located close to the beach huts and the beach (“The Triangle”).

Mr Stenner has run a local boat hire business from the beach huts since 1982. The business is seasonal; the summer holiday season runs from the beginning of May until late September and the off season runs from October until the start of May.

During the summer months, the boats are kept on moorings when not in use. However, the appellant’s evidence before the First Tier Tribunal was that during the winter months (ie from 1 October until 31 May in each year) (“The Relevant Period”), he had used the Triangle to store up to six boats used in connection with the business, with related equipment, and to carry out maintenance and repairs on the boats.

His case was that he has acquired, for the benefit of the beach huts as the dominant tenement, a prescriptive easement over the Triangle - consisting of a right to store up to six boats and related equipment on the Triangle, and to carry out maintenance on those boats.

According to the Supreme Court, importantly, the right claimed is not continuous. “Rather, it was claimed on the basis that it was a right that had effect only during the Relevant Period.”

The court said it is well-established that four conditions must be met for an easement to be recognised, namely:

1. there must be a dominant and a servient tenement (piece of land);
2. the easement must accommodate the dominant tenement;
3. the dominant and servient owners must be different persons; and
4. the easement must be capable of forming the subject matter of a grant.

At first instance, the FTT was satisfied that the first three of these requirements were established. However, the FTT held that the disputed easement failed to satisfy the fourth condition because it infringed the “Ouster Principle.”

The essence of the Ouster Principle is that the right claimed cannot be so extensive or invasive as to deprive the servient owner (ie the respondent council) of enjoyment or possession/control of the servient tenement (ie the Triangle).

The FTT judge held that the legal test endorsed and applied by the Court of Appeal in Batchelor v Marlow [2001] EWCA Civ 1051 remained binding on the Tribunal and the High Court when considering whether the Ouster Principle was engaged.

Applying that test, the judge found that if Mr Stenner’s beach huts had the benefit of the disputed easement, the council would be left without any reasonable use of the Triangle. Consequently, the Ouster Principle was infringed and the appellant’s claim to the disputed easement failed.

On appeal, the Upper Tribunal (Lands Chamber) held that the FTT had not erred in its consideration and application of the Ouster Principle. Accordingly, Mr Stenner’s appeal was dismissed.

However, the appellant applied for and was granted a ‘leapfrog’ certificate, pursuant to Section 14A of the Tribunals, Courts and Enforcement Act 2007, permitting him to apply directly to the Supreme Court for permission to appeal against the UT’s decision.

A Supreme Court panel comprising Lord Briggs, Lord Hamblen and Lord Richards granted permission last week (27 November).

See also: Where now for the right to park? At what point does a right go too far to be recognised as an easement? Max Thorowgood considers a recent Upper Tribunal decision.