Poste Hotels Ltd v Cousins [2020] EWHC 582 (Ch) concerned competing rights to use a private cul-de-sac. The claimant was the owner of the George Hotel in Stamford. The owner of the hotel claimed to have the benefit of a prescriptive right of way over the cul-de-sac to obtain access to a laundry used in connection with the hotel and complained that the defendant – who owned a house in the cul-de-sac and claimed that she had acquired a prescriptive right to park there – had been obstructing access to it by parking her car in front of its doors.
The owner of the hotel argued that it would have been impossible for the owner of the cul-de-sac to grant the defendant a right to park in front of the laundry because any such grant would necessarily have been incompatible with its pre-existing right of way. But the High Court disagreed. The owner of the cul-de-sac was perfectly competent to grant a right to park in it, subject to the pre-existing right of way. Had the owner of the cul-de-sac purported to grant a right to park that was inconsistent with the right of way, the right to park would not be effective to the extent of the inconsistency with the right of way. But the right to park was effective in so far as it was consistent with the right of way.
Prescriptive easements arise where there has been user “as of right” – ie use that has not been authorised, contested or hidden. So the judge turned next to the question of whether the car parking met these criteria. He explained that the principles of law that apply when dealing with claims to prescriptive rights involve the court finding a lawful origin for the long continued use of a servient tenement. But, if there are two reasonably possible lawful origins, Gardner v Hodgson’s Kingston Brewery Company [1903] AC 229 and Odey v Barber [2008] Ch 175 are authorities for the proposition that the user was not “as of right”.
The owner of the George Hotel had suggested that the defendant was simply one of the members of public that had been parking in the cul-de-sac. In other words, there was an alternative lawful origin for her practice. But the cul-de-sac was a private roadway and any members of the public who had parked there to obtain access to the shops could claim nothing more than an easement in gross – which was not an easement at all.
The defendant enjoyed a prescriptive right of way along the cul-de-sac. Rights to pass and repass include a right to load and unload and it would be unrealistic to distinguish between the defendant’s actions when passing and repassing and loading and unloading on the one hand, and when parking on the other. Therefore, the only lawful origin of the user was the notional grant of a right to park.
So the judge dismissed the hotel owner’s appeal against the county court’s finding that the defendant had a prescriptive right to park in the cul-de-sac, which was appurtenant to her property. However, he also dismissed the defendant’s appeal against the county court judge’s decision that she had no right to interfere with the right of way to the laundry, even though she was entitled to park somewhere in the cul-de-sac.
Allyson Colby, property law consultant
