Right to park – Leases of flats – Each flat having use of designated parking space – Defendant landlord proposing to build over parking spaces – Whether right to park forming part of demise under leases or existing as easement – Whether defendant entitled to require claimant leaseholders to use alternative spaces – Whether claimants entitled to injunction to prevent interference with right to park – Claim allowed
The claimants were the long leaseholders of eight flats in an estate of which the defendant was the freeholder. Each flat had the use of a designated parking space as specified in the lease. The relevant lease provisions demised the flat “TOGETHER with” the rights set out in a schedule, including “The right of vehicular access to and egress from the Car Parking Space and the sole right to use the Car Parking Space for the purpose of parking a taxed car or motorbike”. The defendant reserved the right to construct further buildings on the estate.
The defendant proposed to build a further block of flats in such a position that the existing parking spaces would be lost. It proceeded to fence off the area of the new building. The claimants applied for an injunction to prevent the proposed development; they contended that the designated parking space formed part of the demise under each lease, such that the defendant was not entitled to build on those spaces. It was common ground that if they failed in that submission, then the right to park in the designated space should be characterised as an easement appurtenant to the demise of the relevant flat.
The defendant contended that it had the right to require the claimants to use other parking spaces in place of those originally allocated to them or that, if not, any remedy for the claimants should be limited to nominal damages in the light of its offer to provide equally convenient replacement spaces.
Held: The claim was allowed.
(1) Construing the schedule in the context of the lease as a whole, the right to use a car parking space could not sensibly be construed as a demise of that space. The right to use a designated car parking space did not form part of the demise but was granted in addition to that demise.
(2) An easement for parking was not excluded by the facts of the instant case. The right to park did not leave the defendant without any reasonable use of the land, so as to render its ownership illusory: Batchelor v Marlow [2001] EWCA Civ 1051; [2003] 1 WLR 764; [2001] PLSCS 155 and Virdi v Chana [2008] EWHC 2901 (Ch); [2008] PLSCS 329 applied. The defendant could do anything that a freeholder was normally able to do, save to the extent that it was excluded by the terms of the right granted in the lease, as being inconsistent with the express right to park a car and any terms to be implied as a normal matter of construction. The rights that it retained were not illusory but were likely to be of importance and value to the freeholder in managing the estate for its benefit and the benefit of its leaseholders.
(3) The right to build that the defendant had reserved could not be construed so as to permit the entire destruction of the right to park on the designated space, as would occur if the parking spaces were built over: Overcom Properties Ltd v Stockleigh Hall Residents Management Ltd [1989] 1 EGLR 75; [1989] 14 EG 78 applied. Since each lease conferred an express right to use a car parking space, it would take clear language to indicate that the right could be overridden by such a general reservation. The claimants were entitled to object to a building on the ground that it would interfere with specific rights expressly granted to them.
(4) The defendant could not require the claimants to use alternative parking spaces. A servient landowner did not have the right unilaterally to extinguish an easement over one area of land on provision of an equivalent easement over another. Obstruction of the easement originally granted did not cease to be actionable in principle because of the availability of an alternative easement, even if the alternative were equally convenient: Greenwich Healthcare NHS Trust v London & Quadrant Housing Association [1998] 1 WLR 1749; [1998] PLSCS 171 and Heslop v Bishton [2009] EWHC 607 (Ch); [2009] 2 EGLR 11; [2009] 28 EG 86 applied. The terms of the easement granted to the claimants did not, expressly or by implication, permit variation of the servient land.
(5) The fencing off of the parking spaces had substantially interfered with the claimants’ rights and the construction of the new building would interfere with them further. Although the grant of an injunction was discretionary, the claimants were prima facie entitled to one as the normal remedy to prevent interference with their property rights. Only in exceptional circumstances should an injunction be refused and damages awarded in lieu: Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 and Regan v Paul Properties DPF No 1 Ltd [2006] EWCA Civ 1319; [2006] 3 EGLR 94; [2006] 46 EG 210 applied. No such circumstances existed in the instant case. The fact that the defendant was offering alternative parking spaces did not justify refusing an injunction. To refuse an injunction on that ground would permit the defendant to expropriate the rights presently held by the claimants and then choose for itself the remedy to which they were entitled by offering to make amends in a particular way: Greenwich distinguished. What the defendant had done by fencing off the car parking spaces, and what it proposed to do by building on them, amounted to the entire abrogation of the claimants’ express easements to park on those spaces. It was not a trivial injury and would not result in merely a small financial loss; there was evidence that a parking space could be sold on long leasehold for about £20,000. The grant of an injunction would not be oppressive to the defendant, notwithstanding that it would prevent the defendant from carrying out a potentially profitable development, since the defendant had no right to abrogate the property rights of the claimants in order to carry out that development. The claimants had not stood back and allowed the defendant to incur expenditure or proceed with its development on the tacit assumption that they would not enforce their rights, but had instead made it clear at all points that they intended to enforce those rights. It was for the claimants whose rights were infringed to decide whether they were prepared to accept the offer of amends by way of provision of a different space. It could not be said that they were acting unreasonably in seeking to enforce their rights. It was appropriate to grant an injunction.
Simon Edwards (instructed by Fairweather Stephenson & Co, of Leiston) appeared for the claimant; Martin Hutchings QC (instructed by Prettys, of Ipswich) appeared for the defendant.
Sally Dobson, barrister
