Transfer of land — Right of way — Parking restrictions — Proper construction of restrictive covenant Whether absolute prohibition on parking over right of way — Appeal dismissed
The appellant and the respondent were neighbours. The appellant’s property was accessed by way of a roadway belonging to the respondent, over which the appellant had a right of way. The roadway had been transferred to the respondent together with newly developed premises that abutted the rear of the appellant’s. Both properties, together with the surrounding land, had originally formed part of a school until its transfer to a developer. The transfer included a restrictive covenant, binding on the respondent, “not at any time to park vehicles upon or place any articles upon or in any way obstruct the free passage of any part of the roadway over which other persons have rights of way”.
The respondent and her visitors parked on the roadway and the vehicles could be seen from the appellant’s property. The appellant brought an action in the county court seeking, inter alia, an injunction restraining the respondent from parking on the roadway. The judge dismissed that application, but the appellant appealed to the Court of Appeal contending that, on its proper construction, the covenant created an absolute prohibition to park vehicles on the roadway, irrespective of whether it caused an obstruction. The respondent argued that the judge had been right to adopt a purposive, rather than a literal approach to the construction of the covenant and, that he had been entitled to hold that the parking covenant prohibited the use of the roadway only if it amounted to an unlawful interference with the rights of way over it.
Held: The appeal was dismissed.
In the context of the transaction as a whole the restriction on parking was not intended to be absolute. It prohibited use of the roadway only if that use interfered with others’ rights over it. As the judge had held it, the grant of a right of way did not confer a right to pass over each and every square inch of the servient land. Provided that sufficient space was left for the convenient and unimpeded use of the way, parts of the surface could be obstructed.
The purpose of the covenant was to reinforce the use and enjoyment of rights of way and not to impose an absolute prohibition against parking that was not causing an obstruction. Its purpose was to be derived from the words used, and it was necessary to give some meaning to the words “over which other persons have rights of way”. The only way to do that would be to construe the covenant as being directed to the interference with rights of way: Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 applied.
Timothy Harry (instructed by Lane & Partners) appeared for the appellant; Gwilym Harbottle (instructed by Hansells, of Norwich) appeared for the respondent.
Eileen O’Grady, barrister
