Batchelor v Marlow [2003] 1 WLR 764

Key point

Facts

  • The landowner, C, sought declaration that Ds, car mechanics, were not entitled to park on a strip of land C owned
  • Ds claimed that they had an easement acquired by prescription, and that the easement allowed for parking of up to six cars on the land Mondays to Fridays from 8.30 am to 6pm
  • The judge held in favour of Ds; C appealed on the ground that the claimed easement would render his ownership of the land merely illusory

Held (Court of Appeal)

  • Appeal allowed; the right claimed by Ds was not capable of being an easement

Tuckey LJ

  • ‘If one asks the simple question: “Would the appellant have any reasonable use of the land for parking?” the answer, I think, must be “No”. He has no use at all during the whole of the time that parking space is likely to be needed. But if one asks the question whether the appellant has any reasonable use of the land for any other purpose, the answer is even clearer. His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.’: [18]
  • Thus the right was not capable of being an easement and so could not have been acquired by prescription: [19]