In determining the existence of a de facto right to park or quasi-easement corresponding to the right to park, the High Court in Campden Hill Gate Ltd v Duchess of Bedford House RTM [2022] EWHC 2489 (Ch); [2022] PLSCS 167 has provided a useful analysis of the application of the principle in Newman v Jones (22 March 1982, unreported).
The respondents were the long lessees of flats situated in Duchess of Bedford House (DBH), Holland Park, London W8. The block faced onto a private road known as Sheldrake Place East (SPE), which formed part of a larger garden square, Sheldrake Place. Situated in the middle of Sheldrake Place were two other mansion blocks known as Campden Hill Gate (CHG). The appellant was the headlessee of CHG and other parts of Sheldrake Place including the roads and central gardens.
A dispute concerning car parking at SPE had arisen between the residents of DBH and CHG. The respondents successfully applied to the county court for a declaration that they had a right to park on SPE. The respondents argued that the right had first arisen by settled practice. Yet, by way of a 1969 headlease the right to park had been reserved to the freeholder. The effect of that reservation was to convert the de facto right or quasi-easement into a legal easement. The respondents further argued that under a 1974 headlease the benefit of the legal easement was demised to them.
On appeal, the appellant argued that the factual evidence as to the parking practices in 1969 was too “sketchy” for the judge to make a finding that a “substantial number” of the residents of DBH parked in SPE. This ground of appeal was dismissed. The trial judge had made a qualitative rather than a quantitative assessment of the evidence and his findings of fact were unimpeachable.
In respect of the 1969 headlease, the appellants challenged whether the principle in Newman v Jones could be applied to the reservation to the lessor under the 1969 headlease. The appellant sought to distinguish Newman v Jones on the basis that it concerned a claim by an individual flat-owner against its immediate landlord, in which the tenant sought to establish a right to park in favour of his own flat. In the present case, the respondent was claiming that the right which existed in 1969 was a right appurtenant to DBH as a whole. Further, that right could only have arisen if it was apparent that it was being exercised by all the residents of DBH.
In rejecting the above ground of appeal the High Court observed that there was no good reason that the general principle enunciated in Newman v Jones could not also exist as a communal right appurtenant to a block as a whole. Additionally, the trial judge did not require evidence that the right was being exercised by all of the tenants. Only such evidence that would enable him to make a qualitative assessment that a sufficiently settled practice had arisen was required. The right to park fell expressly within the terms of the reservation in the 1969 headlease.
The appellant succeeded in respect of its challenge to the trial judge’s findings as to the effect of the carve-out provision of the 1974 headlease. The appellant argued that the second limb of the carve-out provision sought to exclude “… any ways watercourses sewers drains lights liberties privileges easements rights or advantages whatsoever: … which might restrict or prejudicially affect the future rebuilding alteration or development or redevelopment thereof or of any other adjoining or neighbouring property”.
If the right to park was a subsisting right that took effect as a legal easement by means of the reservation in the 1969 headlease, that right was of such a character that it “might” present a problem to any future rebuilding, alteration or development of SPE. Accordingly, construing the words of the second limb of the carve-out in a natural and ordinary way meant it was excluded from the demise under the 1974 headlease. The High Court agreed.
Elizabeth Dwomoh is a barrister at Lamb Chambers
