ABSTRACT: This case note relates to the decision of the Chancery Division of the High Court in Kettel v Bloomfold, a recent decision concerning the test for ouster in the English law of easements. For the past half century the courts have taken different views of the ouster principle, which limits the number of use-rights over another's land that may validly exist as easements. Kettel can be seen as an attempt to accommodate a conflicting collection of authorities. This case note outlines the key authorities preceding the High Court's decision in Kettel, identifying the rules of law for which each stands and explaining the legal tensions that emerge. It then provides an explanation and analysis of Kettel itself. It is submitted that Kettel is most noteworthy for its innovative (indeed surprising) use of factual analysis to circumvent perceived problems in the state of the law. The case therefore highlights the need for authoritative settlement of this tortured legal question by means of a Supreme Court decision.
The decision of the Chancery Division of the High Court in Kettel v Bloomfold1 is the most recent word on a troubled aspect of English land law, namely the so-called 'ouster principle', which limits the use-rights over another person's land capable of subsisting as easements. Usually drawing from the decision of Evershed MR in Re Ellenborough Park ,2 English law denies easement-status to use-rights over another's land which are deemed inconsistent with the proprietorship or possession of the servient owner.3 The precise formulation of the ouster test determines how far a use-right may impinge on the servient landowner's proprietorship whilst remaining a valid easement. The test has proven contentious4 and an as yet unresolved tension exists between the test sanctioned by the Court of Appeal in Batchelor v Marlow5 and that favoured by the House of Lords in a Scottish appeal, Moncrieff v Jamieson.6 Kettel is noteworthy because it indicates how the English courts are reacting to this apparent tension. In short, Kettel is precedentially obedient, applying the ouster test approved by the Court of Appeal in Batchelor. Nonetheless the High Court's treatment of the facts produces an outcome reflecting the spirit of Moncrieff, in which the House appeared far more tolerant of very onerous easements. Kettel forms part of the discourse as to just how extensive a right must be to be inconsistent with the proprietorship of the servient owner. This comment will first outline the key authorities preceding Kettel in the ouster test saga, then provide a summary, analysis and appraisal of Kettel itself.
Development of the 'ouster' principle and the oscillating decisions
In Copeland v Greenhalf ,7 the defendant claimed an easement to use another's land to store and repair vehicles as he had done for some time. Upjohn J held that on the facts, the right claimed was beyond what could validly be contained in an easement, since a right so wide and unfettered was really a claim to the land's joint user and possession.8
In Miller v Emcer Products ,9 it was questioned whether the right to use a lavatory on another's land could constitute an easement. Although (naturally) the servient owner was excluded from the lavatory while the use-right was being exercised, Romer LJ in the Court of Appeal noted that such temporary exclusion was a feature of many legitimate easements to some extent, and was not ‘such an ouster of the servient owner’s rights as…to be incompatible with a legal easement’. Romer LJ did not intimate what would constitute ouster of the servient owner's rights, but the case did stand for the rule that intermittent exclusion of the servient owner would not of itself oust his rights as proprietor and defeat the easement-status of a use-right.
In London and Blenheim Estates v Ladbroke Retail Parks Ltd, Judge Paul Baker QC stated:
This was approved in Batchelor v Marlow , which concerned a use-right allowing the dominant owner to park three cars on a space in the servient tenement only large enough to accommodate those three cars. Tuckey LJ in the Court of Appeal (with whom the rest of the court agreed) applied the London and Blenheim Estates test.11 He asked whether the right nonetheless left the servient owner with reasonable use of his land, ultimately holding that a right to park for nine hours a day curtailed the servient owner's ability to use the land, rendering his very ownership ‘illusory’.12
Moncrieff v Jamieson likewise concerned a right to park on another's land. Lord Scott declared authoritatively that a right to park a car could be a valid servitude, provided it did not offend the ouster principle. This, he explained, entailed that a servitude must not be inconsistent with the continued beneficial ownership of the servient landowner. The grant of a right so extensive as to be inconsistent with it might have legal existence as a grant of full fee simple, or a mere personal licence, but not a servitude. His Lordship continued:
His Lordship gave the example of a right to use a coal shed and also to possess the key; this would pass possession and control to the dominant owner and thus offend the ouster principle. He approved Miller v Emcer Products, emphasising that any valid easements invariably bars some use of the servient land. Indeed from Lord Scott's rendition it might be inferred that 'possession and control' is always retained (and thus the use-right never offends the ouster principle) where the right is only to perform some specific action on the servient land. Clearly Lord Scott envisaged the ouster principle being offended only rarely. Likewise Lord Neuberger saw ‘considerable force’ in Lord Scott's dicta ‘to the effect that a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive possession, on the basis that the essential requirement is that the servient owner retains possession and control.’14 As a result, Lord Neuberger thought it ‘likely that Batchelor v Marlow was wrongly decided.’'15 Lord Scott too had doubted whether Batchelor was correctly decided,16 but did not purport to overrule it.
Lords Scott and Neuberger clearly preferred an ouster test based on 'possession and control' to the Batchelor 'reasonable use' threshold. However, as Lord Neuberger noted, the actual right in question was sufficiently unobtrusive to survive either threshold, so it was unnecessary for the disposal of the appeal to decide between them: ‘[I]t would be dangerous to try and identify [what] degree of ouster is required to disqualify a right from constituting a servitude or easement, given the very limited argument your Lordships have received on the topic.’17 Therefore their Lordships' preference for the 'possession and control' test can only be obiter, and Moncrieff did not conclusively settle the test for ouster in Scots law, let alone in English. Nonetheless, in the wake of Moncrieff, it might be thought that the Batchelor test will not survive a direct challenge in the Supreme Court, given its unenthusiastic reception by two influential Lords of the Judicial Committee.
The last half century saw conflicting judicial opinion as to whether a right which in practice excludes the servient owner from the affected land can subsist as an easement. This is the scene on which enters Kettel v Bloomfold.
|Wright v Macadam||No ouster → easement|
|Copeland v Greenhalf||Ouster → no easement||But Wright v Macadam not cited|
|Miller v Emcer Products||No ouster → easement|
|London and Blenheim Estates v Ladbroke Retail Parks Ltd||Ouster → no easement|
|Batchelor v Marlow||Ouster → no easement||But test not actually contested|
|Moncrieff v Jamieson||No ouster → easement||But a Scottish decision|
In Kettel, each claimant held a lease of a flat within a development, having the associated use of a designated parking space. The defendant had freehold of both the development and the parking spaces. When the defendant desired to build over the parking spaces, he instructed the claimants to use alternative designated spaces. The claimants sought an injunction to prevent this on the basis that each had a demise of their designated space.
The claimants pleaded this was given to them by the language of the lease instruments. HHJ David Cooke held that on a proper construction of the lease instrument no such demise had been made.19 Additionally the claimants argued for a demise obliquely; the right fell foul of the ouster principle and, therefore incapable of constituting a valid easement, by deduction it could only be a demise.20 Both parties accepted that the 'ouster principle' was a question of degree and consequently that a right to park was capable of subsisting as an easement, depending on its precise terms. The claimants submitted that this specific parking right failed the Batchelor 'reasonable use' test, since ‘it was a right which was so extensive that it deprived the freeholder of any reasonable use of the land for any other purpose.’
The judge cited Lord Scott at  of Moncrieff, but acknowledged the state of the precedents; “Batchelor v Marlow has not been overruled and remains binding on this court.”21 Consequently he applied the Batchelor ('reasonable use') ouster test. However, in applying it, he held the right to park could after all subsist as an easement, since ‘the right exercisable by the [dominant owner] over the space cannot be said in the circumstances of this case to leave [the servient owner] with no reasonable use of the land and so make his ownership of it illusory.’22 In support of this conclusion, the judge enumerated the uses to which the servient owner could put the land, notwithstanding the existence of the right to park:
In direct contrast to the outcome in Batchelor, the judge held that a right to park a car on a plot large enough only to accommodate that car was capable of subsisting as an easement, since it nevertheless left the servient landowner with reasonable use of the plot. Interestingly, these same things could have been done by the servient owner in Batchelor. The judge even quoted24 para  of Batchelor, in which Tuckey LJ stated that a right to park on land for 9.5 hours a day removed any reasonable use of the land by the servient owner and made it too extensive to be an easement. Yet on materially identical facts, the judge in Kettel found the other way, and emphatically:
HHJ Cooke did not explicitly note that the House in Moncrieff had not needed to choose between the two ouster tests and that Moncrieff did not actually settle the proper ouster test even in Scots law. The judge's only stated grounds for disposing of Moncrieff was the division of jurisdictions, rather than the obiter status of the relevant dicta. Dwelling as he did on the jurisdictional issue, it would not have been unthinkable explicitly to adopt a Moncrieff-inspired 'possession and control' ouster threshold, in light of Lord Scott's opinion at  of Moncrieff that the ouster tests in English and Scots law were the same.26 Although the judge adopted a precedentially obedient reading of the law, nonetheless the liberalising influence of Moncrieff penetrated the precedential permafrost that is Batchelor, and the outcome of Kettel owed far more to Moncrieff than to Batchelor. The judge treated the facts in a way so radically opposed to their treatment in Batchelor that he produced an outcome far more redolent of Lord Scott's dicta in Moncrieff. Kettel held that a right which the Court of Appeal in Batchelor considered incapable of subsisting as an easement was in fact capable of subsisting an easement.
One suspects that in light of Moncrieff, the lower English courts feel bound to apply a kind of zombie ouster test; one condemned by high authority but nonetheless clinging to life for reasons of precedent. This explains the High Court's innovative treatment of the facts such as to produce the same result as the preferred legal test would produce. Students of the law might have preferred the judge rebelliously to have followed Moncrieff; although this would certainly have been overruled in the Court of Appeal on grounds of precedent, it might have precipitated authoritative settlement of the issue on final appeal to the Supreme Court.27 Since legislative clarification is probably unlikely28 (easements being far too untrendy to attract much Parliamentary attention), an English decision from the Supreme Court deciding the test for ouster in English law is eagerly awaited.
*After graduating in law from the University of Oxford (having also studied European and international law at the University of Leiden, The Netherlands), James is currently studying in Japan supported by a Daiwa Scholarship. At the same time he is providing legal research for a human rights NGO in Tokyo before beginning work at a major international law firm in Japan.
1 Kettel&Ors v Bloomfold EWHC 1422 (Ch).
2 Re Ellenborough Park  EWCA Civ 4
3 Use-rights falling foul of this 'ouster' principle may only subsist as some other kind of right either greater, (such as fee simple) or lesser (a mere personal licence).
4 The precise formulation of the ouster test links to deeper notions about the nature of property and the acceptable scope of proprietary rights in things over which another person has title. How far one can 'carve out' proprietary rights in a thing whilst leaving the locus of ownership unchanged is a profound question and it should be no surprise that a principle such as ouster, which so closely concerns this question, should have led to divergent opinions among jurists.
5 Batchelor v Marlow  EWCA 1051
6 Moncrieff v Jamieson  UKHL 42: Moncrieff was a Scottish appeal and strictly concerned not the English law of easements but the Scots law of servitudes.
7 Copeland v Greenhalf  Ch 488
8 Consequently the defendant ought to claim fee simple and satisfy the requirements for adverse possession, not prescription. The correctness of Copeland has been questioned. In Moncrieff, Lord Neuberger noted that in the older case of Wright v Macadam , Tucker LJ in the Court of Appeal held that an exclusive right to store coal in a shed was capable of being an easement despite its excluding the servient owner from the shed. Wright was not cited to Upjohn J in Copeland.
9 Miller v Emcer Products  Ch. 304
10  1 All ER 307 at 317;  1 WLR 1278 at 1288, per Judge Paul Baker QC.
11 However, Tuckey LJ at  emphasises that it was agreed between the parties that this was the relevant test.
12 At 
13 At .
14 At .
15 At .
16 At .
17 At .
18 The judgment of HHJ David Cooke addresses many contentions: contractual construction, the ability to vary easements [32-35], the appropriateness of injunctions [37-59] and quantum [60-72]. Discussion of ouster is at [9-15] and [21-24]. Only this aspect of Kettel will be discussed.
19 At [16-19].
20 It was not submitted either that the right constituted fee simple or a mere personal (contractual) use-right.
21 At .
22 At .
23 At . In testing whether rights were illusory, the judge considered whether they were of value to the servient owner, and interestingly to the individual servient owner in question. For instance, it might appear strange to class the ability to “repair the surface...” a beneficial incident of ownership, but this is explained by the fact that the servient owner in question was contractually obliged to keep the spaces in good repair and would be liable if he could not.
24 At .
25 At .
26 HHJ Cooke cited this dictum at . However, such a ruling would require Denningian audacity.
27 Although the parties might not have wished to fund a litigational saga just to give land lawyers a sense of closure.
28 Although a Law Commission Report of 8 June 2011 advocated the statutory abolition of the Batchelor rule, containing a draft Bill.