Landlord and tenant — Parking rights on private areas of block of flats — Whether interlocutory injunction should be granted restraining obstruction of parking — Whether serious issue to be tried
The 42 named
plaintiffs are tenants of a block of flats known as St Stephens Close, London
NW8; the defendant is the landlord. The premises were built in about 1936 as a
purpose-built block of 50 flats. The block is approached down two private
roads; one off Avenue Road and another known as Broxwood Way. The block forms
part of the Avenue Close Estate and within that estate are private roads and
other areas where cars can be parked. Long leases were granted in the early
1970s. The tenants contended that they have the right to park in the areas
around the block by reason of the terms of their leases, properly construed, by
reason of section 62 of the Law of Property Act 1925 or as a matter of
implication.
restrain the landlord from carrying out works to the private ways, there was a
serious issue to be tried as to whether the landlord was estopped from denying
the tenants a right to park. Although the evidence established a perceived
requirement of the tenants to be able to park, the point did not have to be
decided. There was evidence that the tenants had for many years parked in the
private ways and that raised a serious issue to be tried as to whether section
62(2) of the 1925 Act applied. On the affidavit evidence the tenants had parked
in the private areas for years because they thought they were allowed by the
landlord. An injunction was granted as damages would not have been an adequate
remedy for the plaintiffs.
The following
cases are referred to in this report.
Bulstrode
v Lambeth [1953] 1 WLR 1064; [1953] 2 All ER
728
Gregg v Richards [1926] Ch 521
Habib
Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR
1265; [1981] 2 All ER 650; [1982] RPC 19, CA
Lokumal
(K) & Sons (London) v Lotte Shipping Co Pt
(The August Leonhardt) [1985] 2 Lloyd’s Rep 28, CA
Newman v Jones unreported
Pwllbach
Colliery Co Ltd v Woodman [1915] AC 634
This was an
application by notice of motion by the plaintiff tenants, James Handel and 41
others, for an injunction to restrain the defendant landlord, St Stephens Close
Ltd, from obstructing parking in certain private roads in St Stephens Close,
London NW8.
Simon Berry QC
and Phillip Kremen (instructed by Rochman Landau) appeared for the plaintiffs;
Kim Lewison QC and Mark Warwick (instructed by Edge & Ellison Calow Easton)
represented the defendant.
Giving
judgment, ALDOUS J said: The 42 named plaintiffs sue on behalf of
themselves and on behalf of the St Stephens Close Residents Association. They
are the tenants of a block of flats known as St Stephens Close, London NW8.
They claim a right to park in the private areas around St Stephens Close.
The defendant
is the freehold owner of the flats and the private areas. It claims that the
plaintiffs do not have the right to park in those areas. By a letter dated
November 9 1992, the defendant informed the plaintiffs that work to provide
secure parking bays in the private areas around St Stephens Close would begin
on November 16. The erection of such bays would enable the defendant to let
them to the plaintiffs and to others. The plaintiffs sought assurances that the
work would not take place, but these were not forthcoming. Thus, the plaintiffs
issued a notice of motion on November 30 1992, and obtained an ex parte order
from Knox J restraining the defendant from obstructing or otherwise interfering
with the free parking of the plaintiffs. The motion was stood over to come on
as a motion by order and directions were given to enable the evidence to be
completed.
St Stephens
Close was built in about 1936 and is a purpose-built block of 50 flats. They
are expensive flats costing a few hundred thousand pounds. They are approached
down two private roads. The first is off Avenue Road and the other is a private
road known as Broxwood Way, which exits into St Edmund’s Terrace. St Stephens
Close forms part of the Avenue Close Estate and within that estate are the
private roads and other areas where cars can be parked and over the years have
been parked.
The defendant
was formed in 1973 with Mr Reginald Shaw and Mr Bob Holston as shareholders.
The intention was that the defendant would purchase the freehold of St Stephens
Close from Regalion Securities Ltd and thereafter the shares of the defendant
would be sold to residents of St Stephens Close. The defendant did purchase the
freehold, but there was insufficient interest in the purchase of the shares.
Thus, the shares were retained by Mr Shaw and Mr Holston. In 1984 those shares
were sold to a company controlled by Mr Cook.
In the 1970s
long leases were offered to the tenants. These were in most cases purchased in
the early 1970s and what was said to be an example of a standard form of lease
was exhibited as LH 2 to the first affidavit of Mrs Holston.
After the
hearing had been completed, counsel for the plaintiffs became aware that
exhibit LH 2 might not be representative of all the leases in St Stephens
Close. An adjournment was requested and granted. At the restored hearing, fresh
evidence established that the leases of the 10th, 16th, 36th and 38th plaintiffs
were different from the leases of the other plaintiffs. Those plaintiffs’
leases are in the form exhibited as DRL-1 to the first affidavit of David
Liebeck. I will refer to that form of lease as the modified lease so as to
differentiate it from the form of lease that was acquired by the other tenants.
The
plaintiffs’ case is that they have the right to park in the areas around St
Stephens Close. They contend that their right comes from: (a) the terms of
their leases when properly construed; alternatively, (b) from the terms of
their leases which include the right to park by reason of section 62 of the Law
of Property Act 1925; and alternatively, (c) because such a right should be
implied into their leases. The plaintiffs also submitted that if a right to park
was not given by the leases, the defendant was estopped from contending that
the plaintiffs did not have such a right and that their leases should be
rectified to include such a right.
The defendant
disputes the plaintiffs’ case. The defendant went further and submitted that
there was no serious issue to be tried between the parties based on the LH 2
lease and, on that ground, all but four of the plaintiffs’ requests for
interlocutory relief should be dismissed. The defendant did accept that there
was a serious issue to be tried between the four plaintiffs with modified
leases, but submitted that no injunction should be granted having regard to the
balance of justice.
I have come to
the conclusion that there is a serious issue to be tried between all the plaintiffs
and the defendant. As will appear later in my judgment, it is my belief that
there is a serious issue to be tried as to whether the defendant is estopped
from denying that the plaintiffs have the right to park. It is therefore
unnecessary for me to decide the other issues raised, but in deference to the
full and interesting submissions of counsel I will shortly set them out.
Construction
of the lease
The plaintiffs
submitted that there was a serious issue to be tried as to whether the right
given in the second schedule of the lease exhibited as LH 1, which gave the
tenants the right to pass and re-pass, included the right to park. Counsel for
the plaintiffs accepted that, although the grant of a right to pass and re-pass
was found in other leases, there was no case in which it had been held that
such words granted a right to park. Further, in Newman v Jones (unreported),
Sir Robert Megarry V-C concluded that the right ‘to go, pass and re-pass’ did
not per se include a right to park. However, in Bulstrode v Lambert
[1953] 1 WLR 1064, Upjohn J when considering a right to pass and re-pass
held, at p1071, that it included the right to stop, load and unload. That, he
held, was ‘. . . only an incident of the right of way expressly granted and may
be described as ancillary to that easement, because without that right he
cannot substantially enjoy that which has been reserved to him’.
It was
submitted that the right to park, for example overnight, was an incident of the
right granted only in connection with the permitted use. In essence the tenants
could not substantially enjoy their tenancies without the right to park.
The evidence
does establish a perceived requirement of the tenants to be able to park.
However, I doubt whether that evidence is sufficient to establish that the
flats, being flats in London, could not be substantially enjoyed without the
right to park, even though the value of the flats would be reduced if the
leases did not include that right. The plaintiffs’ submission that the tenants
could not substantially enjoy their tenancies without the right to park appears
to me to be somewhat speculative. However, I do not have to decide whether the
plaintiffs’ case raises a serious issue to be tried and I decline to do so.
Section 62
The plaintiffs
submitted that the right to park was imported into their leases by reason of
section 62 of the Law of Property Act 1925. The relevant parts of that section
are:
(2) A conveyance of land, having houses or other
buildings thereon, shall be deemed to include and shall by virtue of this Act
operate to convey, with the land, houses, or other buildings, all outhouses,
erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers,
gutters, drains, ways, passages, lights, watercourses, liberties, privileges,
easements, rights, and advantages whatsoever, appertaining or reputed to
appertain to the land, houses, or other buildings conveyed, or any of them, or
any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed
with, or reputed or known as part or parcel of or appurtenant to, the land,
houses, or other buildings conveyed, or any of them, or any part thereof . . .
(4) This section applies only if and as far as a
contrary intention is not expressed in the conveyance, and has effect subject
to the terms of the conveyance and to the provisions therein contained.
On the
plaintiffs’ evidence, both the landlord and the tenants believed that the
tenants had and would have the right to park when the long leases were agreed
in the 1970s. Further, the plaintiffs’ evidence was to the effect that parking
had been carried out for many years as if that right existed.
In Newman v
Jones, the tenants had the right ‘with or without motorcars and other
vehicles at all times and for all purposes in connection with the permitted
user of the flats to go pass and re-pass over and along the road or driveway
leading or adjacent to the block of flats’. That is similar to the right
granted in this case ‘to pass and repass . . . over and along all roads and footpaths
serving the demised premises’. Sir Robert Megarry V-C, held:
In my opinion,
where there is a block of flats, and the tenants in general regularly park
their cars within the curtilage of the block, the liberty, privilege, easement,
right or advantage of being allowed to do this will rapidly become regarded as
being something which appertains or is reputed to appertain to each of the
flats in the block, and as being reputed appurtenant to each of those flats.
Accordingly, on the grant of a lease of one of the flats, I think that section
62(2) of the Law of Property Act 1925 will operate to give the lessee an
easement of car parking appurtenant to his leasehold. I do not think that it
matters whether the previous occupant of the particular flat did or did not
park their car within the curtilage of the block, or, indeed, whether they had
any car. In all ordinary cases the reputation will be that of a right of
parking which goes with each of the flats, for there will be no reason for one
lessee to have greater rights than another in this respect. The question, ‘can
the tenants park their cars round the block?’
would receive a simple yes, and not an answer which distinguished
between one flat and another on the basis of whether previous occupants of the
flat in question had been accustomed to park their cars round the block.
I do not of
course say that such a rule applies to every block of flats. Thus no reputed
right to park will arise if the lessor operates some scheme whereby tenants are
required to obtain some licence or parking permit from the lessor, or pay for a
specified parking space. Again, in the present case, if the yellow parking
space had actually been constructed, it would have been at least arguable that
the grant of a right to park there was intended when operative, to take the
place of any general right to park on the forecourt. Nor can any rights arise
under section 62(2) if the contrary intention has been expressed in the lease,
thereby bringing section 62(4) into play. But none of these points applies to
the present case. In view of Wright v Macadam [1949] 2 KB 744
(which was not cited in Copeland v Greenhalf [1952] Ch 488) I
feel no hesitation in holding that a right for a landowner to park a car
anywhere in a defined area nearby is capable of existing as an easement.
At trial it
will be necessary to analyse the evidence as to the perceived right of the
tenants in the 1970s. However, there is evidence that the tenants had for many
years parked in the private areas around St Stephens Close and perceived that
they had a right to park in those areas. Leaving aside section 62(4), that
evidence is sufficient, in my view, to raise a serious issue to be tried as to
whether section 62(2) applies. If so, the conclusion of the Vice-Chancellor in Newman
v Jones appears apt.
The defendant
did not seriously dispute that the wording of the grant and the evidence filed
raised a serious issue to be tried as to whether a grant should be implied
having regard to section 62(2). The defendant’s submissions started from the
assumption that such a conclusion could be reached. On behalf of the defendant,
it was submitted that subsection (4) of section 62 applied because of the words
‘but to the exclusion of all others’ in clause 1 of the exhibit LH 2 lease.
That clause reads:
THE Lessor
hereby demises unto the Lessee ALL THAT the flat details of which are specified
in Part 3 of the First Schedule hereto and which is for the purposes of
identification shown edged red and coloured red on the plans attached hereto
(hereinafter called ‘the demised premises’ which flat forms part of the
building (hereinafter called ‘the building’) known as St Stephens close Avenue
Road Regents Park TOGETHER with (but to the exclusion of all others) the rights
set out in the Second Schedule hereto but EXCEPT AND RESERVED the matters set
out in the Third Schedule hereto TO HOLD the same unto the Lessee for the term
commencing on the date hereof and terminating on the 25th March 2069 PAYING
therefor during the said term the yearly rents specified in Part 2 of the First
Schedule hereto all such rents being payable by quarterly instalments in
advance on the usual.
On behalf of
the defendant, it was submitted that pursuant to clause 1 all rights were
expressly excluded, including the right given by section 62(2) of the 1925 Act,
except those actually set out in the second Schedule.
In Gregg v
Richards [1926] Ch 521, the plaintiff claimed the right to use the whole
width of a road for the purpose of access of vehicles to the back of her
premises. The Court of Appeal held that such a right passed to her by the
predecessor to section 62 of the 1925 Act. At p534 Sargant LJ said:
I think it is
important to point out that because the words are in the statute and do not
appear in the conveyance they must not be looked upon as mere implied words or
anything of the sort. Lindley LJ said in terms that it must be looked on as
being an express grant, though no doubt an express grant which may fail
altogether if an intention is expressed to exclude it, or may be limited if an
intention is shown to limit it. It is a little difficult to see how that is to
be dealt with in practice, but I think perhaps the way to regard it may be
this, to consider that in such a conveyance there is added to the parcels a
printed form of words such as you find in the common form printed forms of
clause, and that then if the conveyance expresses an intention to exclude, you
may consider that printed form of words struck out in ink and removed from the
conveyance in that way; while, if an intention is shown to limit or alter the
form, the limitation or alteration being introduced in the particular
conveyance would of course prevail, according to the ordinary rules of
construction of such documents, over the common form which you find in the
print. It may be that that would practically give effect to the provisions of
the statute, but it is to be noticed that it is by way of express grant that it
operates and not by way of implied grant, and that is for the grantor who seeks
to show that that express grant is limited to prove affirmatively that there is
some limitation of that express grant.
On behalf of
the plaintiffs, it was submitted that I should notionally do that which was
suggested by Sargant LJ, namely write into the lease the right to park and
thereafter consider whether the lease contained an express intention to exclude
it. If so, I should write into the second Schedule the right to park and not
cross it out as the words in clause 1 did not express an intention to have it
excluded. In essence, it was submitted that the words ‘but to the exclusion of
all others’ excluded implied rights, but not expressed rights whether they were
actually expressed in the second Schedule or were deemed to be so expressed by
the statute.
The plaintiffs
also submitted that the words ‘to the exclusion of all others’ referred to
other persons not other rights or only excluded rights of a nature similar to
those expressed. If so, section 62(4) did not apply. In any case, the correct
construction and effect of those words should not be decided on motion.
During the
hearing, I favoured the submissions of the defendant. However, as I have said,
I have come to the conclusion that there is a serious issue to be tried and
therefore there is no need for me to express a concluded opinion. I decline to
do so.
Implied
term
The plaintiffs
submitted that if the right to pass and re-pass did not include the right to
park, then such a right should be included by implication: see Pwllbach
Colliery Co Ltd v Woodman [1915] AC 634. The defendant did not
submit that such a right could not be implied in appropriate circumstances, but
submitted that this was not such a case. The defendant drew attention to the
words ‘but to the exclusion of all others’ in clause 1 of the lease and
submitted that no rights other than those referred to in the second Schedule
could exist.
If the words
‘but to the exclusion of all others’ in clause 1 exclude the effect of section
62(2) of the 1925 Act, I believe they must also exclude any implied right.
However, as I have said, I have come to the conclusion that there is a serious
issue to be tried and therefore need not decide this issue either.
Estoppel
I cannot
decide issues of fact at this stage of the proceedings. Thus, to decide whether
there is a serious issue to be tried, I will assume that the facts set out in
the affidavits filed on behalf of the plaintiffs will be proved at trial.
Mr Kim Lewison
QC, for the defendant, referred to the statement of Kerr LJ of the law of
estoppel in The August Leonhardt [1985] 2 Lloyd’s Rep 28, at p35.
The
applicability of the doctrine of estoppel in any given case can also be tested
in another way. There cannot be any estoppel unless the alleged representor has
said or done something, or failed to do something, with the result that —
across the line between the parties — his action or inaction has produced some
belief or expectation in the mind of the alleged representee, so that,
depending on the circumstances, it would thereafter no longer be right to allow
the alleged representor to resile by challenging the belief or expectation
which he has engendered.
That statement
of the law differs in words from that set out in Taylor Fashions Ltd v Liverpool
Victoria Friendly Society, which was approved by the Court of Appeal in Habib
Bank Ltd v Habib Bank AG Zurich [1982] RPC 19, at p36.
Furthermore
the more recent cases indicate, in my judgment, that the application of the Ramsden
v Dyson principle — whether you call it proprietary estoppel, estoppel
by acquiescence or estoppel by encouragement is really immaterial — requires a
very much broader approach which is directed rather at ascertaining whether, in
particular individual circumstances, it would be unconscionable for a party to
be permitted to deny that which, knowingly or unknowingly, he has allowed or
encouraged another to assume to his detriment than to inquiring whether the
circumstances can be fitted within the confines of some preconceived formula
serving as a universal yardstick for every form of unconscionable behaviour.
It is not my
task, on motion, to decide whether a difference in wording between those two
statements of the law is material and, if so, which is right. It is sufficient
for me to decide whether there is a
knowingly or unknowingly, allowed or encouraged the plaintiffs to assume to
their detriment that they had the right to park and, if so, whether it would be
now unconscionable to allow the defendant to deny that which it has allowed or
encouraged the plaintiffs to assume.
Estoppel is,
of course, a personal defence and therefore at trial it may be necessary to
look at the position of a number of the plaintiffs; but at this stage of the
proceedings, I believe I can assume that if one of them has a good defence
based on estoppel, then the others have also.
On behalf of
the defendant, it was submitted that it was not suggested in the evidence that
the landlord had ever expressly represented to the tenants that they had the
right to park. Further, nothing was said about parking when the 1970 leases
were granted. Upon the plaintiffs’ evidence, the tenants believed that they had
the right to park and none of the matters relied on, such as parking discs and
road repairs, influenced their minds. According to the defendant, the evidence
was to the effect that the tenants parked their cars and believed they had the
right, but no action or inaction of the defendant influenced that belief.
I have come to
the conclusion that the evidence does establish a serious issue to be tried.
The flats were built in about 1936 and up to about 1970 they were let on leases
which were bought and sold. Mrs Holston has lived in her flat since 1954. She
said in para 8 of her first affidavit:
8. To my
knowledge successive landlords of the Estate including the present landlords
who are the Defendants to this Action and their respective managing agents have
throughout treated the residents on the Estate as entitled to free and
uninterrupted parking along the Road. When flats are sold by local estate
agents they are always advertised as having private parking rights and this
would be known by St Stephen’s Close Limited and their agents, Flintcote
Management Limited (‘Flintcote’). Evidence of this is in part provided by a
bundle of correspondence now produced and shown to me marked ‘LH3’.
In para 10 of
her second affidavit she said:
10. Had my
husband or I been told then that the Landlord could interfere with our free and
uninterrupted parking rights which had been exercised by us since 1954 we would
have insisted on that right being expressly granted or provided for in the
Lease so as to remove any measure of doubt. The reason why this question was
(quite simply) never addressed nor raised was, in my view, because the right
existed, had then been exercised for over twenty years by some of the tenants
of the block and for about sixteen years by ourselves. Neither Hipparchus nor
the defendant (until October 1992) ever asserted otherwise.
It is
pertinent to ask why Mrs Holston believed the right to park existed. The
answer, as she says, was that the landlord allowed parking and never suggested
that the right did not exist. Thus, the landlord stood back and by inaction
encouraged the residents to believe that they had the right. That was their
belief. They acted upon that belief when they purchased their leases in 1970.
Mr Astor
purchased the end of a short lease from a German diplomat in about 1959 and has
lived in that flat ever since. He was informed by that diplomat that the flat
had the benefit of free and unrestricted parking for residents and their
visitors. He renewed the lease and subsequently purchased a long lease in 1971.
He said in para 9 of his affidavit:
In para 5 of
his Affidavit, Mr Pickering states that it is not correct to say that the
Managing Agents have treated the residents as if they were ‘entitled’ to free
and uninterrupted parking. Since I first moved into the block in 1959 I have
always considered this to be an established right, as do my fellow residents,
and this is clearly reflected in the prices paid for the original long Leases.
That this is the clearly established view is evidenced by the fact that
whenever a flat is placed on the market, it is stated in the appropriate estate
agents particulars that the block has the benefit of off-street parking
(‘OSP’). At pages 9 to 14 there are examples of various estate agents
particulars (recent and old). For Mr Pickering to suggest that he has never
been aware of this is, to say the least, most surprising.
It is a
reasonable inference that the diplomat had the belief that free parking was
available because of the action or inaction of the landlord. As Mr Astor said,
that belief was communicated to him and thereafter everything that happened appears
to have been consistent with the belief being correct. Thus the inaction of the
landlord encouraged the belief that there was a right to park, resulting in Mr
Astor paying a price consistent with that right existing.
Mr Silvert’s
parents moved into a flat in St Stephens Close in 1948. He said parking was not
interfered with at that time. He was instrumental in the refurbishment of the
block on behalf of the landlord and negotiated the sale of long leases with the
tenants in the 1970s. He said that the question of parking never arose because
he believed and everyone considered that there was an existing right to park.
That, he said, was one of the attractions of the flats.
The belief
that there was an existing right to park appears universal and seems to have
arisen from custom and the inaction of the landlord. His evidence supports the
plaintiffs’ case that the long leases were entered into upon the basis that
such a right existed. Such evidence is consistent with the plaintiffs’ case
that the landlords have, over the years, encouraged the tenants to believe that
they had the right to park and that it would now be unconscionable for the
defendant to resile from that position.
Mr Shaw said
in para 6 of his affidavit:
6. I bought
the property in the belief that the residents had the right to park on the
roadway day and night which I would have confirmed to any purchaser or lessee
had I been asked. I do not remember whether I was asked about this in terms but
if I was not it can only have been because residents’ parking rights were
obvious and apparent to everyone concerned. From time to time discussions took
place about preventing unauthorised non-residents from using the roadway for
the purpose of parking. At some time during my ownership of the landlord company
we introduced stickers to identify the cars of residents. We also considered
granting specific bays to residents but we came to the conclusion that this
would be impracticable and cause difficulties in the longer term, especially as
by then many of the residents had more than one car and, of course, one also
had to allow for visitors parking. Overall the general consensus was that the
only way to operate the roadway in a fair fashion was to allow free parking on
the roadway as and where spaces became available (on a first come first serve
basis) but taking such steps as were deemed to be practical to prevent
unauthorised parking by strangers. As far as I can recollect this unauthorised
parking was irregular and casual.
In essence his
evidence was that residents’ parking rights obviously existed. That view is
likely to have been due to the inaction of the landlords, which has continued
until 1992.
The exchange
of correspondence between the solicitors acting for the lessees of penthouse no
2 and the defendant’s solicitors is also consistent with the plaintiffs’
evidence that they were encouraged to believe they had the right to park. The
defendant’s solicitors were asked: ‘What are the provisions for parking along
St Stephens Close?’ The reply was:
‘Resident parking is on a first come first served basis. There is no specific
allocation between flats’.
According to
the plaintiffs’ evidence, the tenants have exercised a right to park since 1936
and they have for nearly 50 years believed that they had that right. It is, in
my view, reasonably arguable that both the landlord and the tenants have over
many years acted upon the assumption that the tenants had a right to park and
that it would now be inequitable for the present landlord to be allowed to
resile from that position.
There is a
dispute between the parties as to whether the tenants’ belief was encouraged by
window stickers and the erection of a hut and gates. There is also a dispute as
to whether the tenants paid for improvements to enable parking, such as work to
strengthen the road. The plaintiffs also believe that the defendant had
knowledge that the leases were being advertised and sold upon representations
by estate agents that off-street parking was available and have taken no
action. Those are matters that will have to be gone into in detail at the
trial. However, I believe that on the evidence there is a serious issue to be
tried as to whether the conduct of the landlords from the 1940s up to 1992
encouraged the belief that a right to park existed and, if so,
conclude that I should go on to consider whether damages would be an adequate
remedy for the plaintiffs and, if not, where the balance of justice lies.
Pending trial,
the defendant wishes to carry out work to provide secure parking bays. This
will involve erecting posts in the private areas surrounding St Stephens Close.
Thereafter, the defendant will issue keys to the tenants which will enable them
to park in one space and also to park in six spaces close to the flats if they
are vacant. The defendant wishes to let out the other spaces and I understand
that there is a market for them at a price of about £2,500 pa each. That is
unacceptable to the plaintiffs. Their evidence points to certain tenants having
two or more cars and some being disabled. In any case, the plaintiffs believe
that the work will cause severe disruption which they contend will amount to a
substantial and continuing interference with their right to park. The
plaintiffs realise that any money that they will have to pay to park will be
held in a joint account in the names of solicitors and therefore it will be
returned to them if they succeed at trial. However, they wish to be able to
park anywhere in the private areas where there is a space and submit that
damages will not be an adequate remedy for the disturbance caused by the works
and the inconvenience of having to park in one allocated bay.
The proposed
work to provide secure parking bays will substantially interfere with the
plaintiffs’ claimed right to park and I believe that damages will not
adequately compensate them for that interference nor the disturbance created by
the work. Not all the plaintiffs will have parking bays close to the entrance
to St Stephens Close and in any case no provision will be made for two cars,
let alone visitors’.
As to the
defendant’s damage, it was not disputed that the plaintiffs could pay any award
of damages ordered pursuant to the cross-undertaking as to damages. That being
so, it is likely that any loss suffered by reason of the grant of an injunction
could be reasonably accurately calculated.
I believe that
I should, pending trial, maintain the status quo. I do not believe that it
would be right to allow the defendant to inflict upon the plaintiffs the
disturbance that will occur if the security bays are erected, particularly as
damages would be a reasonably adequate remedy for the defendant under the cross-undertaking
as to damages.
The defendant
submitted that if I came to the conclusion that an injunction pending judgment
in the action should be granted, it should be limited to the areas adjacent to
St Stephens Close and exclude the access road known as Broxwood Way. I realise
that the plaintiffs park in Broxwood Way only if there is no parking available
adjacent to the flats, but the compromise suggested does not appeal to me. If
the plaintiffs have the right to park in Broxwood Way, that right will be disturbed
by the erection of security parking bays. Damages would be unlikely to be
adequate compensation for the plaintiffs and I conclude that it would be best
to maintain the present position, a position that has existed since 1936, until
after trial. That means that the injunction will prevent erection of bays in
Broxwood Way.
Interlocutory
injunction granted.
