Brittany Pearce of our Real Estate team has provided a useful summary on the case of Stenner v Teignbridge District Council.
Mr Stenner has applied (on a leapfrog basis) from the Upper Tribunal (“UT”) to the Supreme Court, seeking permission to appeal in a matter concerning the acquisition of easements and the application of the ouster principle.
Facts of the case
Mr Stenner owns beach huts close to the local authority’s (“TDC”) car park and, since 1982, has run a seasonal boat hire business from the beach huts. He claimed that he had acquired a prescriptive easement to use part of TDC’s car park (“the Triangle”) for the storage of up to 6 boats during the off-season (October – May) and, on an ancillary basis, for the purpose of carrying out maintenance and repairs. The Triangle could accommodate 4 cars (the car park’s total capacity was around 32 cars) and it appeared that use of the Triangle for the practice of storing boats dated back to the 1940s. There was evidence that other locals and clubs had utilised the Triangle throughout the year for storage, with and without TDC’s permission. The First-tier Tribunal (“FTT”) accepted Mr Stenner’s account and other supporting accounts as to use during the off-season and found that he had made out 20 years’ continuous use. In considering continuous use in circumstances where an intermittent easement was claimed the FTT considered that continuous use was only required during the claimed period, not all year round.
Whilst the FTT accepted that Mr Stenner had established 20 years’ use as of right and that (a) there was a servient and dominant tenement, (b) the easement accommodated the dominant tenement, and (c) the dominant and servient tenement owners were different people, it held that the claim failed because the claimed easement would leave TDC with no reasonable use of the Triangle during the off-season. As the claim was for an intermittent easement it did not matter that TDC would have use of the Triangle outside of the off-season.
The ouster principle
The question of ouster commonly arises in connection with consideration of easements of storage and parking. It provides that, to be characterised as an easement, the claimed right cannot be so extensive as to oust the servient owner from the enjoyment or control of the servient tenement. For instance, in Copeland v Greenhalf [1952] Ch 488 there was no right to store vehicles where the claim was, effectively, for possession of the area under dispute. In London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 the right to park cars was determined as being capable of forming the basis of an easement provided that it did not leave the servient tenement owner without reasonable use of his land. This sentiment was endorsed by the Court of Appeal in Batchelor v Marlow [2001] EWCA Civ 1051, which concerned the right to park up to 6 cars on a verge during business hours on business days; in that case it was determined that this would leave the servient owner without reasonable use of his land for parking or any other purpose. The test is whether the servient tenement owner is left with reasonable use of the subject land.
The first appeal
It was accepted by Mr Stenner that the FTT had asked itself the correct question, namely whether TDC was left without reasonable use during the off-season, but suggested that the FTT went wrong in answering this question. Mr Stenner appealed on three grounds (the first of which effectively comprised four sub-grounds):
The grounds
Ground 1
- Was the FTT wrong to place so much weight on Copeland?
- Did the FTT adopt the wrong approach in disregarding possible pedestrian use of the Triangle during the off-season?
- Did the FTT fail to take into account other possible uses which TDC could have made, such as drainage, lighting, running of utilities, provision of seating etc?
- Was the FTT wrong not to take into account the extent of the dominant tenement’s use of a coal shed for storage in Wright v Macadam [1949] 2 KB 744?
Ground 2: the FTT was wrong to disregard the temporal nature of the easement insofar as it concerned the question of TDC’s reasonable user.
Ground 3: the FTT was wrong to place any reliance on Chadwick LJ’s statement in Montrose Court Holdings Ltd v Shamash [2006] EWCA Civ 251 (at [30]) to the effect that occupation for a continuous period of 72 hours would be too extensive when considering a claimed parking easement.
The decision
Ground 1(a) was dismissed on the basis that, firstly, there were considerable similarities between the two cases such that the FTT was entitled to view the claim in a similar manner to Copeland. Secondly, it could not be said that the FTT made some significant (or any) error in relying on Copeland as a similar case.
Regarding ground 1(b), as a matter of fact the FTT had found there was no utility in pedestrian access and, even if the FTT had been wrong on that point, the decision was not plainly wrong and did not constitute a significant error.
Ground 1(c) failed because the FTT had determined that the claimed use effectively gave Mr Stenner exclusive use of the Triangle during the off-season and there was no basis to conclude that the FTT had failed to take into account other possible uses or that its decision was wrong or that it had made a significant (or any) error.
Ground 1(d) failed because the FTT was not required to take Wright into account; it asked itself the correct question as to whether TDC was left any reasonable use of the land. In any event, Wright had been cited and, though it was not cited in the decision, the UT concluded that the FTT had taken Wright into account. Moreover, Wright did not discuss the ouster principle and there was no ground for speculation as to what the court’s decision would have been had the principle been raised. Finally, even if it had been considered, there was no reason to think that the FTT would have been drawn to a different conclusion.
As to ground 2, the UT considered it correct not to take into account TDC’s use of the Triangle during the summer months as this was not a period affected by the claimed easement. That use outside of the claimed times was considered in Batchelor did not carry weight as there was no argument or consideration in that case as to whether it was correct to consider use outside of the claimed times. In any event, even if taken into account, this would still have excluded TDC for two-thirds of the year and, further, the FTT had to focus on the Triangle, not use of the car park more generally.
Ground 3 failed because, firstly, there was nothing to suggest that the FTT placed any reliance on Chadwick LJ’s statement and even if it had, the FTT was merely noting that Mr Stenner’s use would be for considerably more than 72 hours in the context of reinforcing its decision; the FTT was not accepting as a proposition that use in excess of 72 hours could not subsist as an easement.
The leapfrog appeal
If permission to appeal is granted, the Supreme Court is expected to consider the correct test to 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.
General application
It has long been recognised that the application of the ouster principle has been difficult to predict, particularly in cases concerning claimed rights to storage and parking, both of which involve a degree of permanent presence on land, unlike easements of a less permanent nature, such as rights of way.
Generally, it is accepted that there is a lack of clarity existing as to where the line lays between an easement and a right that it too invasive of the landowner’s rights as to be capable of being characterised as an easement. Lord Scott criticised the current test in Moncrieff v Jamieson [2007] UKHL 42, opining (at [59]) that it was not the uncertainty of the test that was the problem but the test itself. In his view a landowner should be entitled to grant rights of a servitudal character over his land to any extent he wished and that there should be no differentiation between the character of an easement that could be acquired by grant or created by prescription. This view, that it was a question of whether the servient owner retained possession and control, obtained support from Lord Neuberger in the same case, albeit he did not consider Moncrieff a suitable case in which to consider the issue.
It is yet to be determined whether Mr Stenner will obtain permission to appeal but given the general uncertainty that exists, particularly in relation to parking and storage (and in circumstances where easement claims concerning parking are encountered more and more frequently), it is to be hoped that the Supreme Court will take this opportunity to provide clarity as to the test to be applied when it comes to the ouster principle and, possibly, given the nature of this case, as to the factors to be considered when an intermittent easement is sought, or an easement sought over part of a larger area of land.
Citations & timeline
10 June 2025: Upper Tribunal (Lands Chamber) [2025] UKUT 204 (LC)
12 September 2025: Permission to apply directly to the Supreme Court for permission to appeal granted
Brittany is a member of St John’s Chamber’s chancery team. To instruct her, please speak to a member of the Chancery & Commercial clerking team on 0117 923 4740 or email [email protected]