Where now for the ‘right’ to park?

Background to Stenner v Teignbridge District Council [2025] UKUT 204 (LC)

In Stenner v Teignbridge DC [2025] UKUT 204 (LC) the Applicant claimed a right to store boats on a small part of the Respondent Council’s car park during the winter months. The application was confined to the small area of land said to be subject to the right and for a limited period, 1st October to 31st May. The FTT (Colin Green) rejected the application on the basis that the ouster principle was engaged and that the right claimed effectively denied the servient owner any reasonable use of the land subject to the right during the period in respect of which it was claimed.

Edwin Johnson J dismissing the appeal held that he was bound by the decision of the Court of Appeal in Batchelor v Marlow [2001] EWCA Civ 1051 and that it was not the function of the Upper Tribunal to interfere with the FTT’s assessment of the factual position as regards ouster.

He has, however, given permission for a leapfrog appeal to the Supreme Court as he previously did in Brown v Ridley.

The development of the law in relation to easements of storage and parking

In AG of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 the House of Lords decided that a right of storage was capable of existing as an easement because it was necessary, ‘to the conditions of modern society and trade.’ And in Wright v Macadam [1949] 2 K.B. 744 the Court of Appeal held that an apparently exclusive right to store coal in a coal bunker was similarly capable of being the subject of a grant.

In London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 1 All ER 307 HHJ Paul Baker KC held that, as a matter of principle at least, a right to park was capable of existing as an easement.

However, these decisions have always been subject to the tension that an easement cannot be exercisable in such a way as to deny the owner of the servient land any reasonable use of the land which is the subject of the easement; the so- called, ‘Ouster Principle’.

That principle found its expression specifically in relation to the ‘right’ to park’ in the decision of the Court of Appeal in Batchelor v Marlow when Tuckey LJ held that a right, during working hours five days a week, to park six cars on a piece of land capable of accommodating only six cars was not capable of existing as an easement because it denied the servient owner any reasonable use of the land subject to the right. It was not, therefore, a right which was capable of being acquired by prescription as an easement.

It was, at the time, thought that the decision of the House of Lords in Moncrieff v Jamieson [2007] UKHL 42, although it is a Scottish case concerning implied servitudes, would pave the way reasonably rapidly for a revisiting of the decision in Batchelor v Marlow; even though Batchelor continued to be good law, in England and Wales at least. However, until now, no opportunity for the Supreme Court to ‘build upon’ Moncrieff seems to have presented itself.

Where now?

The problem is one of exclusivity. A right to store goods or coal or cars on land is only likely to be useful/valuable if it can be exercised to the exclusion of the servient owner in relation to a particular area. However, that exclusivity immediately engages the ouster principle.

Unusually, in Moncrieff v Jamieson the right claimed was to park a single car somewhere in a relatively large area. Likewise, the claimed right in Stenner seems not to have been inherently objectionable on the basis that the right claimed was only over a small portion of the car park and at a time when it was unlikely to be particularly busy. It is not entirely clear therefore why it should have been so problematic that the use was exclusive of the particular area in respect of which it was exercised.

Difficulties and therefore litigation generally arise when there is pressure on space at the material times and hence a need to reserve a space at those times; the result being that the ouster principle is always likely to be engaged. It is unclear, however, why it should be said that such exclusivity is inimical to the creation of an easement.

Other easements, such as a right of drainage through a particular pipe into a water treatment plant and/or a right to pass service media through a particular duct might well be equally exclusive and yet that does not seem to prevent them being the subject matter of a grant; perhaps because the exclusivity is not visibly apparent.

Max Thorowgood is a barrister at Field Court Chambers.