J U D G M E N T IN THE CENTRAL LONDON COUNTY COURT. 26 Park Crescent London W1B 1HT Friday, 11 th November Before: HIS HONOUR JUDGE DIGHT

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1 IN THE CENTRAL LONDON COUNTY COURT No. 0CL Park Crescent London W1B 1HT Friday, 11 th November 2011 Before: HIS HONOUR JUDGE DIGHT B E T W E E N : EUROPEAN URBAN ST. PANCRAS 2 LTD Claimant - and - BRIDGET ANN GLYNN Defendant Transcribed by BEVERLEY F. NUNNERY & CO Official Shorthand Writers and Tape Transcribers Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: Fax: info@beverleynunnery.com MR. E. DENEHAN appeared on behalf of the Claimant. MR. D. HOLLAND QC appeared on behalf of the Defendant. J U D G M E N T (As approved by the Judge)

2 JUDGE DIGHT: 1 This claim was brought as a possession claim, but the real issue is whether the first defendant ("the defendant") who is the owner and operator of a garage business, has an easement to park vehicles on part of the claimant's land. By para. 6 of her defence, the defendant acknowledges the claimant's right to possession subject to 1) her right of way granted by deed and 2) her alleged right to park as a result of alleged long user. The claimant is a registered housing provider and charity, wholly owned by the Genesis Housing Group, who, having purchased the land in May 2008 for more than 3 million, wishes to develop it, If the defendant does have a right of the sort that she asserts, the scope for development will be much reduced. 2 The whole site was originally one but was divided into two parcels in A right of way was granted but the deed contained no reference to parking. The claimant's land is a former petrol station, the address of which is 77 St. Paul's Avenue, London, title to which is registered at HM Land Registry under Title no. MGL ("the petrol station"). The defendant's land, from which her business called "Willesden Green Garages" operated, carries on the business of mechanical engineers and MOT testing. Title to the defendant s land is registered under no. MX ("the garage"). 3 It seems to me perfectly obvious from looking at the site, and I had the benefit of a site visit early on in this case, that the garage business would need parking spaces to operate effectively. The garage is not situated in the sort of area where it would be possible to leave visitors' cars on the road by what is a relatively busy junction. The layout of the land is in general terms this: it forms a corner site, it is bounded at the north by a railway line, on the west running diagonally northwest to southeast is Park Avenue, that forms a junction with St. Paul's Avenue, which runs along the southern boundary. There is property immediately adjacent to the site on the eastern boundary. The garage which sits in the northwest corner of the site is, perhaps, a little under a quarter of the whole of the site in size. The original filling station stood on the eastern part of the site (which I have referred to as the petrol station ), but the canopy, pumps and tanks are no longer there. The right of way, which was granted by the deed that I have already mentioned, was described as: "A right of way at all times and for all purposes with and without vehicles over and along the land coloured brown on the plan, the transferor paying a reasonable portion of the costs of maintaining the same, and observing prevailing traffic direction"

3 - whatever that last condition means. The land coloured brown is a passage running from each of the entrances on Park Avenue by the garage and St. Paul's Avenue by the petrol station towards the garage and then up along the East Flank wall of the garage towards the railway line at the north. 4 The benefit of the right of way is registered against the title to the garage, and the burden against the title to the petrol station. I should mention, although irrelevant to the matters that I have to decide, that on purchase the claimant alleges that it was not told about the existence of the right of way and is currently pursuing a professional negligence action against its conveyancing solicitors. The areas in respect of which the rights to park are claimed are identified on the plan which we have used in the course of the proceedings as areas "A", "B" and "C". Area "A" is immediately between the garage and Park Avenue on the western side of the plot, area "C" is immediately to the southeast or to the right of the entrance to Park Avenue, and is vaguely triangular in shape. Area "B" is off the eastern flank of the garage and fills the space between the garage wall and the northern boundary across the right of way. 5 In this case I have been provided with numerous plans. We have, throughout, worked effectively by reference to one only of those plans. I have also seen a number of photographs which have assisted me in the course of these proceedings and which are in the trial bundles. 6 The garage itself comprises two small office areas or waiting rooms, a number of ramps for engineers to work on cars, and some storage areas. The main vehicular entrance to the garage lies off the southern part of the building. It is apparent that on the eastern flank wall there was at one stage some type of opening, one cannot tell when it was closed, and there is in the northeastern corner, outside the garage, a concrete slope which runs down from the garage itself but there is no longer any access from that slope into the building itself. The photographs, which are contained in the bundle come from various dates. From p.170 onwards there are photographs prepared by a firm of architects called "Living Architects", which I understand are from February 2009, which show a number of vehicles parked in area "C" on the premises and, indeed, elsewhere, filling, as far as one can see, the majority of both parts of the site. There is also a useful plan provided by the same architects dated September 2009, which shows the position of the garage and the former filling station and a number of bollards that were constructed on the site across the St. Paul's Avenue entrance and along a diagonal line running from area "C" across to the petrol station - six bollards on that line in total. There are also photographs of a wooden hoarding, which was subsequently erected in place of the metal fence which was there at one stage.

4 7 The issues, when the case was opened, were effectively these: (i) One of the main factual issues: can the defendant establish sufficient user as of right on three separate and defined plots, "A", "B" and "C", for 18 parking spaces for at least 20 years, in respect of which it is common ground that the burden is on the defendant? (ii) A related legal issue: is the right asserted by the defendant one recognised as an easement in law? (iii) the claimant's claim for possession which, as I have already mentioned, is admitted subject to the defendant's right of way and the alleged right to park. (iv) There was at one stage a dispute about whether there were ancillary rights arising out the proper construction of the right of way to park in the property, but as I understand the arguments that is no longer a live issue. (v) The defendant seeks damages for interference with the right of way and the right to park by the erection of fencing and the construction of bollards. 8 The defendant's case is based on alleged user from She asserts an entitlement to a right to park by virtue of the doctrine of lost modern grant. She says in paras. 4 and 5 of her defence as follows: "4. The first defendant and her predecessors in title have since at least 1983, if not earlier, by virtue of the deed of grant made to them by the predecessors in title of the claimant, who were then freehold owners of the servient land, continuously enjoyed the rights set out in para. 5 below. That deed has since been lost or destroyed by accident. 5. The aforesaid right consists of a right in common with the claimant and previously its predecessors in title to park vehicles and to authorise the tenant's employees, customers, agents and/or licensees of the owner of the garage to park their vehicles on three defined areas on the servient land as marked on the rough plan annexed hereto and marked A, B and C, individual parking spaces being indicated approximately by an X."

5 9 It was agreed at the beginning of the trial that, effectively the burden being on the defendant, it was for the defendant to open the case but, as events turned out, I actually heard evidence from the claimant's witnesses first, followed by the defendant's. On behalf of the claimant I heard from Miss Tracey Williams, who is the deputy director of development for the claimant. She told me that she had not visited the site for reasons which are obvious and understandable because she had little to do with the site prior to her employment by the claimant in her current role, and could only give hearsay evidence in any event. She could only give me limited assistance on the main issues. I also heard from a Mr. Heath, a building contractor, who had erected and removed fencing and hoarding on the site. I heard from a Mr. Singh, who was an events contractor, who was instructed to take count of the number of vehicles entering, leaving and parking on the site in March 2011 over a period of three weeks during which he recorded a daily average of between 9 and 14 cars parked on the site. 10 On behalf of the defendant I heard Mrs. Glynn, the owner of the garage. She plainly had difficulties in giving evidence. She found dealing with some of the documents a struggle and a strain; I understand her difficulties in giving evidence. She persuaded me that, while she had a role in the management of the business prior to her late husband's death, she really did not have very much to do with it. During her late husband s lifetime I find that he had a much greater role in the management of the business and in the negotiation of transactions with others, including the claimant's predecessors in title than she did. In respect of those earlier negotiations and transactions Mrs. Glynn could, in fact, help me relatively little. Where her evidence was, however, useful, was in respect of the user of the land by people parking on it over the time that she has been involved with the garage. I heard from: a Mr. Williams, a mechanic and a customer of the garage since 1970, a Mr. McGovern, who is a friend of the defendant and her late husband, who used the garage from the mid-1970s, Mr. Clark, a former mechanic and then manager of the garage from 1993 to 2007, who was in charge of what went on there on a day to day basis and reported until his departure from the business to the late Mr. Glynn. I heard from a Mr. Jordan, again a personal friend of the defendant, a vehicle engineer, familiar with the garage since the 1970s. I read the evidence of Mr. Barratt, who was a user in the 1970s and 1980s, he was not available for crossexamination and added little to what I was told by others and in the circumstances I gave little weight to what was contained in his statement. 11 The evidence satisfies me as to the following: prior to 1981 the property was, one site. The owners of the site in the 1970s planned to develop it, and it may be, although I cannot be sure, that that was the time when the petrol station and the garage were both constructed. I have been shown a copy of a plan

6 prepared by a firm of Architects called Robert Turner Associates from 1970, which shows proposals for the layout of the site at that stage. It shows not only the individual pumps in the filling station and the garage in the shape in which it now appears but also sets out beside the garage, in area B, a number of marked car parking spaces and, in area C a further number of marked car parking spaces. What I do not know is whether those plans were, in fact, carried out when the property was developed. 12 Chronologically, it seems to me likely that it was Mr. Williams who first came to know the garage as it was in the 1970s. He told me the following in his witness statement, which I accept: "Since around 1970 to the present day I have used the garage two or three times per month. It soon became the garage of choice for me for MOT and repairs and was particularly useful because of the space you had to get in and out of the garage. Since my very first use of the garage I have parked on the land next to the garages in the spaces marked with an X " on the plan which he exhibited to the witness statement. "I parked in those spaces for about an hour each time, or until the repairs or MOT had been carried out. There were a number of parking bays and I seem to remember that at any one time there were always up to about 10 vehicles parked on the spaces now marked X. The vehicles would be of varying sizes but predominantly either cars or light vans. Upon my initial use of the garage in the 1970s I remember asking employees of the garage whether it was okay to park on the areas and the said it was fine. I asked on more than one occasion when, for example, one of the parking areas was full. After frequenting the garage for a couple of years I no longer felt the need to ask where to park because it was obvious that all the parking areas were intended for customers of the garage. There were never any signs that suggested otherwise or that indicated where to park." He gave evidence that he continued to drive past the garage and the petrol station until at least 2003 and that in his view nothing has changed since then. He was cross-examined about his evidence and he accepted that when he used the garage he used to enter the garage via Park Avenue, but that when he went to the petrol station he entered via St. Paul's Avenue. He accepted that when he was referring to parking bays in his witness statement they were not areas which had in fact been marked out by lines on the ground. He told counsel

7 that he understood that areas B and C were for customers' parking and that A was for staff. 13 The next witness chronologically was Mr. Jordan. He gave evidence about parking on the areas that I have mentioned and he said that until December 2009 there was never a time when he was unable to park in any of the parking spaces indicated on the map, by which he meant A, B and C, but that after December 2009 he could no longer park on C. He said in cross-examination that he had parked on areas A, B and C from the 1970s to 2009, that there were, as Mr. Williams had said, no marked spaces. Contrary to what Mr. Williams had said, however, he indicated that the traffic flow was effectively a one way system entering from St. Pauls and going out via Park Avenue. It does not seem to me that that difference in his evidence detracts from the quality of what told me about the use of the parking spaces. 14 I heard also from Mr. McGovern, who had experience of use of the garage from the mid-1970s onwards. He said that he had visited the garage about three or four times per year since the mid-1970s, and had used the petrol station three or four times per month. He confirmed that he had first visited the garage in about 1975 or 1976 and in his witness statement he said this: "Upon arrival at the garage I was sometimes instructed to park my van or car in a vacant parking space on the land next door. These spaces were located in the same positions as those marked X on the plan which he exhibited. On other occasions I would proceed to park in these spaces as a matter of habit. I would usually park my vehicle in one of the spaces marked X and return after the necessary work had been carried out by the garage. I picked my vehicle up within about two hours of dropping it off. I remember there would usually be about 15 other cars parked on the areas to the sides and front of the garage, which I can now identify as those areas marked "X" at p.1. Insofar as I am aware, the only area that vehicles associated with the garage would ever use would be those parking bays identified on the plan at p.1. Apart from my own visits to the garage I also go past the garage on a monthly basis. I cannot remember the land next to the garage ever being empty of cars. Further, there has never been a time when I have not been allowed to park in the spaces marked "X". He gave evidence that after the garage had been taken over by Mrs. Glynn and her late husband, he continued to use the services of the garage. His evidence about entry onto the site was that he would usually go on to the garage or petrol station from which ever was the most convenient place. He said that he

8 put his car in whatever empty spot there was when he was visiting the garage, often directed by a garage employee. He also confirmed that there were no marked-out spaces and he said that there were usually about 15 parked cars in areas A, B and C. 15 So far as the marking of spaces is concerned, the defendant, when she came to give evidence in due course believed that there had been markings, lines on the ground - she did not know when they were put in - parallel to the flank wall of the garage indicating where people were, indeed, intended to park. None of the other witnesses, as I have already indicated, recall that. But I did see, myself, in area A, when I visited the property, that there was something marked on the ground and underneath one of the vehicles something was painted on the ground but unfortunately I could not see exactly what it was and I heard no evidence about what it was. 16 On 19 th May 1981 the garage and petrol station were split into two separate parcels as a result of a transfer between Alan Pond Regional Limited and Isherwoods Garage Limited. It is to be inferred and is contended by counsel, that Isherwoods Garage Ltd was a subsidiary company of, or at least associated with Elf Total who appear to have been the owners of the petrol station until acquired by the claimant in this case. By the transfer Alan Pond Regional Limited retained the garage and sold off the petrol station. They sold off the petrol station together with the right to enter the garage for the purpose of repairing the buildings erected on the petrol station, and they reserved the right of way that I have already mentioned for the benefit of the garage, together with a right to enter the petrol station to repair the building on the garage. It is surprising, given the layout of the site and the intended user of it, that no express mention was made of parking but that is, of course, what has given rise to the present problem. It seems to me, in light of what I have been told by the witnesses to whom I have already referred, that there was, prior to the date of that transfer, continual user of areas A, B and C for parking, for the benefit of the garage. I rather suspect that the conveyancers on sorting out the division of the parcels did not give any thought to the question of parking rights. I have no copy of the conveyancing file and although that is my suspicion as to what may have happened, it does not play part in my fact finding or the conclusion that I reach ultimately in this case. 17 In the late 1980s, again I do not know the precise date, Mr. James Mangan, the defendant's brother-in-law, acquired the freehold of the garage. It is common ground that in 1993 he let the garage to the defendant for a period of five years, and that the lease, which appears to have been in writing, contained an option to purchase. The lease has gone missing and I was not able to see a copy of it at trial. The lease was granted in the defendant's name, and she told

9 me that it was intended as some form of compensation for the support she had provided to her late sister and Mr. Mangan, but nothing really turns on that. 18 In 1993 the defendant and her husband started operating the garage business and it was at that stage that Mr. Clark became the manager. In his witness statement, which I accept, he told me the following: "For my entire 14 years of employment I drove to work. I was living in St. Albans, Hertfordshire. Whilst at work I would always park on the 77 St. Paul's Avenue site " - in other words on the land which I have referred to as the garage: " and would generally park my car by the bins in area B or outside the office window, again in area B. On occasions I would park in area C, but that was mainly where customers parked. I worked as a mechanic for about a year. He would work on cars which had been parked in areas A, B or C, and put them back there after he had worked on them. He said: "After a year I became garage manager at Willesden Green Garage, and I co-ordinated site activity. When customers arrived they would either park in one of the three areas A, B or C, or inside the entrance to the garage. Many customers were long standing customers of our predecessors and would park in areas A, B and C out of habit without any direction from employees of the garage. At other times they would drive straight inside the garage and park in front of the MOT bay area. When someone drove inside parked their car inside the garage, I would either move the car myself or direct a mechanic to move the vehicle, as parking cars inside the garage caused congestion and obstructed the MOT area which had to remain free according to the OSA regulations. Any cars moved from inside the garage would be put in a space outside. Customers from the neighbouring petrol station would rarely park in areas A, B or C. He says in para. 13 of his witness statement: "Some garage cars were parked overnight in either of the areas A, B and C. Customers would sometimes drop their cars off for MOT or repair outside opening hours. They would park their cars in either area A, B or C and drop the keys through the letterbox for us to collect in the morning. The AA and RAC would also drop cars off outside

10 opening hours and leave them outside the garage. This would happen any day of the week." He told me in his live oral evidence that if there was an available spot on A, B or C when he was managing the business he would direct customers to park there. He confirmed that no permission to park was ever sought from the petrol station or the owners of it. He said that his vehicle was generally parked in area B, the mechanics would park their vehicles outside on Park Avenue, otherwise in the garage. He also confirmed to me that lorries on which the garage was doing work would be parked on area B. 19 On 13 th January 1999 the defendant acquired the freehold of the garage from Mr. Mangan. She told me that from the time when she first came to live in the area it had always appeared to her that the parking spaces which have been identified on the plan as A, B and C were used by the garage and its customers, and she therefore believed they were part of the rights that went with it and that is the belief that she tells me she held at the time of her acquisition of the freehold of the garage. She said that since her first involvement with the garage business in 1993 neither she nor her husband had questioned the right to use the parking spaces. She said: "Since that time I have always used the parking spaces for the purposes of running the business and for the customers of the garage to park their vehicles whilst visiting it." In para. 8 she said: "Before officially opening the workshop part of the garage in or about August 1993 we were selling cars from the garage and we also needed to install various items of equipment and carry out some refurbishment of the premises. During this period, as well as our own cars being parked on the servient land the vehicles of our employees, contractors and delivery agents would also park in the parking areas. Subsequently, from the first day of business, customers which predominantly consisted of longstanding customers of the previous owners and occupants of the garage, drove on to the garage forecourt via the express right of way and parked their cars in these parking bays. As the new tenants of the garage we thought nothing of this as we understood that this had always been the case and that the parking bays could be used by the occupiers of the garage. Many customers already parked in the parking spaces by habit, and if a customer asked if they could park there I and my husband, or one of our employees, would inform them that they could. Our employees would also park

11 both their own cars and our customers' cars on the servient land. We continued this practice for the next 17 years." She supplemented that in oral evidence by explaining that she believed that there were parking lines parallel to the flank wall of the garage, although no parking bays were marked out as such. She gave evidence of contractors, such as the waste removal contractors parking in area B and of drivers delivering spare-parts parking in area A. She said that the number of vehicles parked in A and B could vary from between 3 to 25 depending on the time of the day. She confirmed that since 1971 the garage owners have always paid business rates, based on the inclusion of 11 car parking spaces, and that she had continued to pay rates on that basis. She produced an dated 8 th February 2010 written by Miss Doreen Thorne of the Harrow Valuation Office, which says this: "Mrs. Glynn, further to our telephone conversation where you confirmed your interest in this hereditament, I can confirm that the valuation set out on our website " - which is then cited: " is an accurate description of the hereditament, it includes 11 car parking spaces. Following an examination of my computer records, and a cursory view of the hard copy file, I can confirm that the hereditament has not changed since it was first brought into rating in I must stress that I have not looked in detail at the file. I trust this sufficient for your needs. Doreen." That evidence from the local valuation office is slim and undetailed, but it confirms the general tenor of the evidence that I have already mentioned from the other lay witnesses to the effect that from the early 1970s the occupiers of the garage had used the adjacent parking spaces for the purposes of their business. 20 In June 2003, for what I assume are commercial reasons, the filling station closed. At that stage, there were discussions, as is apparent from correspondence, between the owners of the petrol station and Mr. Glynn about what was to become of the site. By a letter dated 2 nd June 2003, headed "Subject to Contract", Mr. Marshall of Total wrote to Mr. Glynn under the heading: "Willesden St. Paul's Service Station": "Further to our recent meeting in advance of the planned closure of the petrol forecourt on 11 th June 2003 and given the current parking

12 arrangements and occupation of our property generally, I confirm that we are prepared to grant a tenancy at will, peppercorn rent, over that part of our property to the west of the petrol forecourt. This will, of course, mean the closure of the road access nearest the petrol forecourt, the attached sketch plan indicates the approximate line of the fencing we will be erecting to separate the petrol forecourt from the rest of our property. Perhaps you would write to confirm your agreement to the above proposal and details of your solicitors, if you wish to use a solicitor, to whom the tenancy at will should be submitted in the first instance." That letter evidences not only that there were discussions between Total and Mr. Glynn, but that Total were intent on entering into a formal arrangement with the defendant in respect of the parking of which they are, from this letter, plainly aware. The expression "given the current parking arrangements and occupation of our property generally" is slightly obscure, but it does give a picture of cars being parked somewhat extensively over land belonging to the claimant's predecessor in title. Reliance is placed on this by the claimants as evidence of express agreements, arising out of discussions prior to this date between Total and Glynn, pursuant to which it is submitted, that the claimants predecessors in title had granted express rights to Mrs. Glynn to park on the petrol station site. 21 The letter in response is dated 4 th June 2003, the photocopy is extremely poor, but it is written by Mr. Glynn and says, insofar as decipherable: "I agree to take a tenancy at will of the forecourt west of the.." I think it says: " access fencing." He then provides details of his solicitors, and concludes by saying: "You can be assured of all our help with any further works which you will have to do." That letter does not give any indication as to the arrangements prior to that date. It does show that Mr. Glynn was being co-operative and intent on assisting Total and instructed solicitors to give him advice in respect of the tenancy at will which was intended to be granted. That tenancy was granted on 16 th December It was granted not to the defendant herself, but to her late husband. The defendant says that the reason for granting the tenancy at will was because the claimant's predecessors were concerned about the possibility of fly tipping on the unoccupied premises and wanted Mr. Glynn's consent to put a fence to the east of the right of way and temporarily to obstruct the right of way by putting up the bollards between St. Paul's Avenue and the filling station in consideration of which they were to grant the tenancy over the majority of their land. She goes on to say:

13 "However, in so agreeing my husband did not intend to affect nor, indeed, could he have affected my continuing right as freeholder to park cars on the servient land. Total UK subsequently erected a metal fence and put two bollards in place and my husband entered into a tenancy at will." It is plain to me from the cross-examination of Mrs. Glynn, and I mean no criticism of her, that she did not understand the concept and effect of this particular agreement. In reality she was not involved in the grant at the time, although she accepted that her husband probably told her about it. She denied that her husband was getting Total's permission to park through the agreement, and denied that parking was with the permission of Total generally. 22 Mr. Clark gave evidence that he had been told by the late Mr. Glynn that this tenancy had been granted because of Total's concern about fly tipping, although he accepted that the evidence which he gave could be hearsay only because he had not been directly involved in the negotiations. By the tenancy at will a greater area was granted to Mr. Glynn than had been allowed as a right of way pursuant to the 1981 deed. It is obvious that Total were giving something more than existed before. It seems to me likely that they did have concerns about fly tipping, that they wanted to regulated the site and that they were giving an extra bit of land to Mr. Glynn in compensation, as it were, for his co-operation and for the erecction of the bollards blocking St. Paul's Avenue. On its proper construction there is no doubt that Mr. Glynn and Total agreed to a restriction on the user of the land which was granted. The permitted use was defined as car parking and car sales, and the user covenant contained in clause 4(5) was that: "The tenant must not use the premises or any part of them otherwise than for the permitted use". The rights granted by the tenancy were to be non-assignable, and there is an express provision as to occupation in clause 4(9) that the tenant would not permit any of the land demised to be occupied by any person other than the tenant, his employees and customers. There is no doubt that from that point onwards until a date, which I will come to in a moment, parking on the areas A, B and C was with the consent of the owners of the land of which A, B and C had formed part. Following this, fencing and bollards were erected and the fuel tanks on the petrol station were dug out and removed. 23 On expiry of this tenancy a further agreement was entered into, again with Mr. Glynn alone, but for a period of 24 months. The lease was specifically contracted out of the Landlord and Tenant Act The extent of the demise was the same. The user covenants were similar, although the extent of the prohibited uses, and degree of control retained by the land owners were, having regard to clause 3.5(2) more extensive than under the tenancy at will.

14 It is also apparent to me that Mr. Glynn had taken legal advice - that is the inference I draw - in respect of that agreement, the details of the solicitors appearing on the plan attached to the tenancy. 24 On 9 th June 2006 the freehold of the property changed hands, the land being acquired by First Willesden Properties Limited. In March 2008 Mr. Glynn passed away and it was shortly after that that the claimant came to be registered as the proprietor of the land. After that point there were discussions between the claimant and defendant about potential joint development of the site. I do not need to go into the details of those save to say that it is plain from the correspondence that I have seen and the evidence that I have heard, that the discussions broke down over the price to be paid in mutual recriminations which have not assisted me to determine the real issues in this case. 25 In 2009, following the breakdown of the negotiations, the claimant asked the defendant to remove vehicles from the land. There is correspondence from the defendant, which was co-written with her daughter, which the defendant now describes as "stupid letters" which she regrets having sent, and regrets not having sought legal advice before sending. Notwithstanding their terms, she says that she always believed that she had a right to park on the land marked A, B and C. She says that the letters were written as a result of her having been scared and having panicked at the time that they were written. 26 The first in a chain of letters is that dated 22 nd October 2009 from the claimant's solicitors, delivered by hand at a time when I accept that Mrs. Glynn was away on holiday, in which the claimants assert that on expiry of the last lease on 15 th December 2006, the continued parking on the land amounted to a trespass, and that they required the defendant to vacate the premises which they described as the "leased premises" which is a reference to the land which was permitted to be occupied by the terms of the lease of Some days later, when Mrs. Glynn was back from her holiday, a letter was sent to her again by hand and by suggesting that there had been no reply to the first letter, asserting that she was illegally trespassing by continuing to park on the claimant's land, requesting vacant possession of, again, the "leased premises" forthwith, and asking for confirmation "by no later than close of business on Friday, 6 th November" that vacant possession would be given, failing which proceedings would be commenced. That was responded to by what, to my eyes, was a carefully drafted letter dated 6 th November 2009, sent by in the following terms. "I acknowledge receipt of your letter and dated 4 th November As I am not at the garage permanently your letter dated 22 nd

15 October 2009 remained unopened until earlier this week. Having now reviewed all your correspondence I am in a position to respond. I fully intend to comply with your client's wishes. I assure you that I have no desire to trespass or obstruct access to your client's property, nor has my interaction with the vacant property been characterised as such by any proprietor before now. However, having now been made aware of your client's wishes I am happy to oblige with them. However, having occupied the front part of the site for 15 years " That is agreed to be a reference to the area marked "C": " I hope your client can appreciate that complying with their request will initially entail logistical difficulties. I therefore respectfully request that the vacating period be extended until the end of November I very much hope your client agrees that this is reasonable considering the circumstances. I hope your client finds it acceptable and look forward to receiving your response. Yours faithfully, Mrs. Bridget Ann Glynn (Proprietor). That is a carefully constructed, well considered, well drafted letter, which specifically says that the defendant had reviewed all the correspondence relevant to this question. I do not accept that it was written in a sense of panic. I well see that the defendant may have been scared at the time. I well accept that she might now regret having written that letter, but it seems to me that at the time it was an honest, truthful, well-constructed and conciliatory letter to have written. It is criticised because the letter does not say that other areas of the property had been used for more than 15 years or that she asserted any rights in respect of any other properties. 27 The criticism is maintained in respect of the subsequent correspondence, because what then happened was that by letter dated 9 th November the claimants asked for an agreement that Mrs. Glynn would vacate by Monday, 30 th November. She wrote back noting the contents and saying: "Your client's co-operation is appreciated". A further letter from the claimant followed on 8 th December 2009 suggesting that vacant possession had not been given by the agreed timetable, but that the claimant would continue to allow parking until 31 st December, following which if vacant possession had not been given they would start proceedings. There was one short subsequent letter of 5 th January. 28 On 6 th January 2010 the defendant wrote as follows:

16 "I write further to your letter dated 5 th January. I reject the allegation that I am continuing to trespass on your client's property. Vacant possession of the leased premises has been given since November 2009 and any vehicles now parked on the leased land do so without my consent. May I suggest to your client that unauthorised parking is an inevitable consequence of having an unused accessible site in London. As our lease has ended it is no longer my concern who parks on the leased premises and I will not police the site on your client's behalf. I am shocked, however, that having ended the lease your client has continued to ignore my own legal rights of which they are fully aware and has made no effort whatsoever to remove the obstruction which is wholly blocking my right of way across the premises. This obstruction is affecting the functioning of my business and I now demand that the fencing and concrete blocks be removed within 48 hours or I will instruct contractors and forward the invoice on to your client." Again, that letter does not seem to me to have been written out of a sense of panic. It is surprising that there is no express reference to the right which the defendant now asserts to park on the land. The only legal rights that she refers to seems to be the right of way. The defendant uses the expression "the leased premises" and appears to acknowledge the right that the claimant has to vacant possession of it. The letter, in essence, is saying: "Now that you will not let me park on your land any more, I want you to get off my right of way." In other words, the parties are, in my judgment, at that stage standing on their own rights. The defendant, when she was cross-examined, suggested that by that letter she thought that she was being asked to move her cars off the central piece of land, but I am afraid that is not how I read the letter. The question is: what impact, if any, that has on my assessment of her evidence? 29 It seems to me that the proper analysis of it is this: having accepted that after having acquired an interest in the property she had used the areas A, B and C for parking and that she knew that from a much earlier period the land had been used for parking, the defendant may or may not have felt that she had a right to do so. What she plainly knew was that the premises had been used for those purposes and whatever she may have said in her letter does not persuade me that she was not telling the truth in that respect. It cannot mean that the parking had not taken place. The most it can go to is whether or not she understood that, as a result of the user over a long period or otherwise, she had a right to park. It is plain that no right to park is asserted in this correspondence. If the defendant failed to assert a right to park in the letters that does not detract from the proper analysis of the factual evidence, and a

17 conclusion as to whether or not such a right existed. It does not persuade me that she was not telling the truth. 30 In January 2010, at about the time that the correspondence was continuing, Mr. Heath began to remove the metal fencing from around the boundary of the petrol station and to erect wooden hoarding along a line which was marked out by the claimant's architects after Mr. Heath had previously priced the job. He also removed one of the two bollards at the entrance of the site on St. Paul's Avenue. He was there for some time. By letter dated 18 th January 2010, the defendant complained about the work that was being carried out at the petrol station and the alleged that it had caused obstruction to her business, suggesting that she was losing approximately 300 a day. No evidence has been produced to substantiate that figure, and she is the only person who gives evidence as to the obstruction that she mentions there, and the alleged interference with her rights. 31 In April 2011 the hoarding was removed by Mr. Heath. The bollard remained in place on St. Paul's Avenue, and is still there today. It is undoubtedly, in theory, an obstruction to the right of way and the right of the defendant to obtain access through that entrance, but the claim to the losses referred to in the letter of 18 th January 2010 are not pursued. I say at this point I am not satisfied, having regard to the evidence that I have heard, that there has, in fact, been any real interference with the right of way, notwithstanding the presence of the bollard, nor am I satisfied that the figure of 300 a day, which was asserted in that letter on 18 th January, was anything other than a negotiating ploy. That, in my judgment, was all of a piece with the breakdown in the relationship between claimant and defendant at that time. Pending resolution of this claim, which was started in January 2010, it has been agreed that the claimant was entitled to park no more than 18 cars on the site. 32 Turning then to look at the issues. First, can the claimant establish user as of right on the three areas in accordance with her pleaded case? It seems to me, and I find as a fact, that the occupiers of the land which I have described as the garage have used the areas marked A, B and C for parking probably since the 1970s. I accept that user before division of the land in 1981 is irrelevant, but I find that the user continued almost unchanged over the course of the years from the time that the evidence which I have heard starts in the 1970s. As I have mentioned previously, it is obvious that the garage would require parking spaces, obvious that there would be parking around the garage by the people going there and using it. It is plainly evident from the material that I have referred to that people have been using it in just that way. All of the witnesses called by the defendant, who have given evidence to that effect, were in my

18 judgment truthful witnesses, and I accept what they told me. Does that give rise to a right? 33 The defendant relies on the doctrine of lost modern grant and I have been referred to the relevant passages in Gale on Easements 18 th Edition, which sets out the relevant principles. The learned editors, in para.4-8 say this: "But, although the Courts refused in form to shorten the time of legal memory by analogy to the later Statutes of Limitation, they obviated the inconvenience which must have arisen from allowing long enjoyment to be defeated by showing that it had not had a uniform existence during the whole period required, by introducing a new kind of title by presumption of a grant made and lost in modern times." At para. 4-1 there is a reference to an analysis by Buckley LJ in a case called Tehidy Minerals Limited v Norman of the well-known decision Angus v Dalton [1877] 3QB 85, and he said this: "In our judgment Angus & Co. v Dalton [1877] 3 QBD 85 decides that, where there has been upwards of 20 years uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made." In commenting on Angus & Co. v Dalton itself, the learned editors of Gale say at para. 4-12: "In the Queen's Bench Division all the Judges appear to have been of the opinion that the presumption was capable of being rebutted by some means or other but they differed upon the question of what evidence or admission was sufficient for the purpose." 34 The claimant submits that "user" in the sense referred to by Gale defines the extent of the right and because in this case there has been no user by the claimant, in common with the defendant, the right itself is not capable of being an easement. They say effectively that their client has had no use, the defendant has had sole use and that does not satisfy the necessary test. The defendant, on the other hand, submits that the fact that the land is available to

19 the claimant, but not used by it cannot mean that no easement arises. It seems to me that that must be right. There are two different questions, one of which I will return to later, but if the user of the land occupies the whole of the land to the exclusion of the other party then, subject to the point I am going to come to, it seems to me common ground that that could not amount to an easement. But if the user of the land does not use it to such an exclusive extent, and there are other uses which could be made of it by the other party, but the other party does not avail itself of that possibility that does not mean that the easement is not capable of arising. 35 The next question is whether or not the user in this case was, as of right - or, as some have said, "as of wrong": was the right exercised as a result of permission having been granted or solely in the absence of permission. Under the sub-heading nec precario what the learned editors of Gale say at para. 4-94: "The enjoyment must not be precarious. What is precarious? That which depends not on right but on the will of another person." I leave out Bracton's Latin quotation: "Enjoyment had under licence or permission from the owner of the servient tenement confers no right to the easement. Each renewal of the licence rebuts the presumption which would otherwise arise that such enjoyment was had under a claim of right to the easement. Permission granted by a tenant who is in occupation of the servient tenement is sufficient to defeat a claim under the doctrine of lost grant, or on the basis of s.2 of the Prescription Act. The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand." 36 The claimant's submission is that in this case the user has at all material times been precarious and been exercised with the permission of the landowners, the owners of the freehold of the petrol station, from time to time. They say that even before the grant of the tenancy at will and subsequently the lease, the evidence discloses that there was an arrangement in place which permitted the defendant to occupy the land for parking. The claimant relies in particular on the letter referred to earlier dated 2 nd July 2003 written by Mr. Marshall to the late Mr. Glynn. I cannot construe that letter as referring to earlier discussions between Total and Mr. Glynn pursuant to which he was granted an express right to park on the petrol station. On the contrary, it seems to me highly likely, given the way in which this letter sought formally to regulate the position between the parties, that had there been an express arrangement

20 between them prior to that date, that Total would have, as they did there, have tried to formalise the arrangement in writing in some way. It is plain that there was dialogue between Mr. Glynn and the claimant s predecessors but the terms of that dialogue are unknown. The inference I draw, from what I have seen, is that there was no such express permission. The grant of the leases ended the non-permissive period, but that does not mean that the previous period was permissive. Equally, the subsequent correspondence, written by the defendant, does not support any contention that the user of the land for parking was permissive. 37 The next question is whether the right asserted by the defendant was one recognised as an easement in law and again I turn to Gale para under the heading: "Parking and Stopping" where the learned editors say: "There appears to be no reason in principle why a right to park a car somewhere in a defined area should not be capable of being an easement provided that: (a) it is made pertinent to a dominant tenement; and (b) the right is not so excessive as to exclude the servient owner and leave him without any use of the area in question for parking or anything else. Indeed, counsel have often accepted or assumed, and the courts have on a number of occasions now decided that a right to park is capable of being an easement. Any residual doubts on this point have now been dispelled by the decision of the House of Lords in Moncreiff v Jamieson." 38 The claimant submits that if, in fact, the claimed right excludes the claimant such that it can have no real or reasonable enjoyment of the use of the land then what is claimed by the defendant cannot be an easement in any event. They refer me to the decision of Upjohn J in Copeland v Greenhalf [1952] 1Ch 488 where an easement to deposit vehicles was claimed in respect of a strip of land about 150 feet in length. In that case the learned Judge said at p.498: " I think that the right claimed goes wholly outside any normal idea of an easement. That is the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim, to which no closely raised authority has been referred to me really amounts to a claim to a joint user of the land by the defendants. Practically the defendant is claiming the whole beneficial user of the strip of land on the southeast side of the track there, he can leave as many or as few lorries there as he likes for as long as he likes. He may enter on it by himself, his servants and agents to do repair work thereon. In my judgment that is not a claim that can be established as an easement. It