The status of parking rights has sparked numerous legal disputes. A strong line of authority, culminating in the Court of Appeal decision in Batchelor v Marlow [2001] EWCA Civ 1051; [2003] 1 WLR 764, suggested that rights to park will not constitute legal easements if the exercise of such rights would deprive a landowner of the reasonable use of its land. More recently, in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620, Lord Scott suggested that the legitimacy of such rights should depend on whether the landowner retains possession and control of the burdened land.
In Safestore v RSN Property Ltd [2009] PLSCS 292, the judge decided to play safe and used both tests to decide whether the owners of land adjoining a private roadway had acquired prescriptive rights to park vehicles along the side of the road that was nearest to their buildings.
The status of parking rights has sparked numerous legal disputes. A strong line of authority, culminating in the Court of Appeal decision in Batchelor v Marlow [2001] EWCA Civ 1051; [2003] 1 WLR 764, suggested that rights to park will not constitute legal easements if the exercise of such rights would deprive a landowner of the reasonable use of its land. More recently, in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620, Lord Scott suggested that the legitimacy of such rights should depend on whether the landowner retains possession and control of the burdened land.
In Safestore v RSN Property Ltd [2009] PLSCS 292, the judge decided to play safe and used both tests to decide whether the owners of land adjoining a private roadway had acquired prescriptive rights to park vehicles along the side of the road that was nearest to their buildings.
He observed that the courts are unlikely to uphold claims to permanent rights to park in a particular place. In such cases, the right claimed would deprive the servient landowner of the use of that space. The landowner’s possession and control of that space would therefore be illusory. Conversely, the more varied the location of the vehicle(s) parked, the more difficult it will become to identify the location of the land burdened by the right to park.
None the less, he was able to sidestep this particular problem because the area in which vehicles had been parked was identifiable. Importantly, the parking was also shared with the servient landowner, which operated a dairy at the end of the roadway. The first vehicles to park in the morning were tankers, queuing to deliver to the dairy. When they left, the adjoining landowners, their customers and staff parked on a “first come first served” basis outside their respective properties during normal business hours. Consequently, the parking spaces were not in permanent use.
This unusual combination of circumstances persuaded the judge to uphold the claim to prescriptive parking rights, in common with the owner of the roadway, despite the existence of restrictive covenants prohibiting parking on the road. Prescriptive rights can be obtained by use that is illegal (in the sense of being tortious): Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 EGLR 15; [2004] 20 EG 168. Similarly, therefore, user in breach of covenant does not prevent the acquisition of prescriptive rights.
Where does the law stand following this decision? The judge indicated that he – and, he thought, other members of the judiciary – would be reluctant to recognise an exclusive right to park a private car on a neighbour’s land, except in the most unusual circumstances (as in Moncrieff), because of the high degree of permanence involved. However, because of the unusual circumstances of Safestore, the judge did not believe that his decision was breaking new ground.
It is worth noting that this is a county court judgment, which is not binding in future cases. None the less, it raises some interesting points of law on a subject that continues to exercise the judiciary. Consequently, the debate may well continue in the appellate courts.
Allyson Colby is a property law consultant
