In Virdi v Chana ([2008] EWHC 2901 (Ch)) A claimed to have acquired a car parking easement over land (‘the servient land’) partly owned by B. The question was whether the claim was invalidated by the ouster principle.
In Batchelor v Marlow, the English Court of Appeal rejected a claimed car parking easement on the basis that it left the servient owner without any reasonable use of the land.
If the whole of the surface area would be taken up by the car there was an ouster. An application of this test might seem to invalidate the easement claimed in Virdi.
Batchelor came in for severe criticism by the UK Supreme Court in Moncrieff v Jamieson. Moncrieff made ‘control and possession’ the test. This was a relaxation of the strict test in Batchelor.
Judge Purle QC noted, however, that Moncrieff had not overruled Batchelor and felt bound to apply Batchelor. He held that the easement was valid even when the Batchelor test was applied.
First, peculiar to the facts of this case, B did not own all of the servient land, only a part of it. It could not be said that the claimed easement prevented B from parking since B had no right to do so.
Second, some uses of the land owned by B remained possible: planting trees or shrubs, erecting a trellis. These could be done so long as they did not prevent the parking of a car.
Judge Purle thought that even the right to resurface the land prevented the easement from infringing the ouster principle. When the land was next to domestic property, resurfacing might have aesthetic value. Such a right was not wholly insignificant and illusory.
Michael Lower
