Easements and the ouster principle

In Copeland v Greenhalf ([1952] Ch 488) a claim to an easement to park cars on a strip of land failed because it was said to amount to a claim to the whole of the land. This is an illustration of the ouster principle. In relation to a claim to an easement to park cars the principle was invoked in Batchelor v Marlow ([2001] EWCA Civ 1051); the claim failed on this ground. This shows that the ouster principle lives on. The difficulty with the principle, however, is that all easements interfere to some extent with the enjoyment of the land by the owner of the dominant tenement. What degree of use or enjoyment must be left over for the dominant owner if the claimed easement is not to fall foul of the ouster principle?

Alexander Hill-Smith commented on this issue in ‘Rights of parking and the ouster principle after Batchelor v Marlow‘ ([2007] Conveyancer and Property Lawyer 223). He concludes that the ouster principle should rarely have any effect:

‘It is submitted that the ouster principle should only come into effect where, as perhaps occurred in the Copeland case, the party claiming the easement was claiming an unrestricted right to use the land as it wished. Such a claim will be in adverse possession or nothing’. (at 234)

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