Easement – Acquisition – Prescription – Dispute arising between neighbours concerning rights of way over access road to cul-de-sac – Defendants seeking to erect gate across part of road – Whether defendants interfering with claimants’ rights of way – Whether claimants establishing right to park by prescription – Claim allowed – Counterclaim dismissed.
The claimants and defendants were neighbours who lived in a cul-de-sac in Gerards Cross, Buckinghamshire. A dispute arose between them concerning the rights of way and rights to park on the private road providing access from a busy public highway to each of their properties. The defendants wished to erect a gate to restrict access by the general public to the cul-de-sac and arranged for three gate posts to be concreted into the access road so that the western part of the road beyond the gate posts was blocked off to any vehicles.
The claimants protested that that was an interference with their rights of way. They applied to the court for a declaration in relation to their rights of way, a mandatory injunction to remove the obstruction on the access road and an injunction to restrain the defendants from obstructing the access road or interfering with the claimants’ use of it. The defendants counterclaimed for a declaration that the claimants were not entitled to park on the access road, an injunction to prevent them doing so and a declaration that the proposed gate would not unlawfully interfere with their rights of way.
The claimants maintained that the practice of parking vehicles on the access road had been carried on by the claimants or their predecessors, and by their invitees, since at least 1973 as of right and without interruption and the right to park was claimed under section 2 of the Prescription Act 1832, alternatively by the doctrine of lost modern grant or at common law.
Held: The claim was allowed. The counterclaim was dismissed.
(1) In relation to actionable infringement of a right of way, the test was one of convenience and not necessity or reasonable necessity. Provided that what the grantee was insisting on was not unreasonable, the question was whether the right of way could be substantially and practically exercised as conveniently as before. If the grantee had contracted for the relative luxury of an ample right, he was not to be deprived of it merely because it was a relative luxury and a reduced, non-ample right was all that was reasonably required. On the evidence, in the present case, the gate posts which had been cemented into the access road, and the proposed gate, were a substantial interference as they would prevent the claimants from exercising their rights of way and rights to park as conveniently as before: B&Q Plc v Liverpool and Lancashire Properties Ltd (2000) PLSCS 180; [2000] EGCS 101; (2001) 81 P&CR 20 applied.
(2) A right to park was capable of being an easement which could be acquired by prescription. However, an easement could not be claimed if its effect was to deprive the servient owner of the benefits of ownership. In Batchelor v Marlow [2003] 1 WLR 764, the Court of Appeal held that, in the case of parking spaces, an easement of parking could not exist if the use of the land for parking left the owner of the servient land without any reasonable use of his land so that his ownership was rendered illusory. Where the parking place was adjacent to a domestic property, the ability of the domestic owner to alter the surface for aesthetic reasons could not be dismissed as wholly insignificant or illusory. Moncrieff v Jamieson [2007] UKHL 142; [2007] 1 WLR 2620 and Virdi v Chana [2008] EWHC 2901; [2008] PLSCS 329 considered.
In the present case, the claimants were the owners of the dominant tenements. The servient tenement was the whole of the access road. The claimants’ claim to a right to park based on prescription could not be made at common law as the properties and access road were only built in 1973. Therefore, the claimants relied on the doctrine of lost modern grant or the Prescription Act 1832. In either case the features of prescription were the same: The claimants had to show at least 20 years uninterrupted enjoyment as of right, i.e., not by force, nor stealth, nor with the licence of the owner, of the right to park adjacent to their properties on the access road for the benefit of those properties. The user by which an easement could be acquired by prescription had to be by a person in possession of the dominant tenement which included any user by invitees or visitors of the person in possession of the dominant tenement. The quality of the enjoyment of the user also had to be definite and sufficiently continuous in its character to indicate an assertion by the claimants, or their predecessors, of such rights.
It was clear from the evidence that the claimants had established over 20 years uninterrupted user as of right to park on the access road adjacent to their properties. That use had not rendered the defendants’ use of the servient tenement illusory as, even with cars parked on the road, there was plenty of room for them to drive along the access road and park their own cars in front of their property. The defendants had also altered the surface of the access road for aesthetic reasons so that the western end was now paved like a patio. In those circumstances, the defendants had not been deprived of their reasonable use of the access road: Batchelor v Marlow distinguished.
Tamsin Cox (instructed by Coyle White Devine) appeared for the claimants; Kavan Gunaratna (instructed by Pittmans LLP) appeared for the defendants
Eileen O’Grady, barrister
