Easements – Parking on private road – Defendants’ property accessed by right of way over road – Defendant subsequently acquiring road — Claimants claiming right to park acquired by prescription or lost modern grant – Whether such right precluded as derogation from grant to defendant – Whether area of right sufficiently capable of definition – Whether right to park capable of existing in circumstances – Claim allowed
The claimants each owned commercial premises adjoining a private road, at the end of which the defendants operated a dairy business. Until 2007, the defendants’ access over the road was pursuant to a right of way contained in a 1968 transfer of the diary site that was granted by the vendor as the owner of the road and the land to either side of it. In 2007, the defendants acquired the road. They acknowledged that the claimants had certain rights of access and of loading and unloading vehicles from the road by virtue of grants contained in their respective titles. However, for many years, vehicles had also been parked on the road adjacent to the four properties during ordinary business hours. The defendants sought to prevent that use.
The claimants brought proceedings against the defendants, claiming to have acquired a right to park on the road by prescription under the Prescription Act 1832 or by lost modern grant. The defendants contended that: (i) it was not possible to acquire such a right by those means because the law of prescription presumed a grant, and any such grant would have been a breach of the covenant in the 1968 transfer and a derogation from the grant of the dairy site; and (ii) the area of the tenement was insufficiently defined since a right to park anywhere on the road could not exist. The defendants also disputed whether the other requirements for the establishment of an easement had been met on the facts of the case.
Held: The claim was allowed.
(1) A prescriptive right could be obtained by long use that throughout was illegal in the sense of being tortious: Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 EGLR 15; [2004] 20 EG 168 applied. Similarly, the fact that the user was in breach of covenant did not prevent a prescriptive right from being acquired. The remedy for breach had been in the hands of the owners of the dairy site; they had the right to enforce the covenant when they saw that it had been breached. They had not enforced it and had therefore lost that right by acquiescing in the breach. The owner of the road had likewise acquiesced in the breach of covenant by its successors in title and in the trespass by vehicles on the road. Acquiescence in a breach of covenant should not be treated differently from acquiescence in a tort, which was the basis of prescription.
(2) A servient tenement had to be defined and so constitute an area: Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 applied. A right to park anywhere on the road would be an absurdity. However, the alleged right to park was not impossible on the ground of insufficient definition since the easement alleged was confined to, and defined by, the particular parts of the road on which parking had taken place.
On the evidence, staff and visitors connected with each property would generally park on the road as near as possible to the building concerned but would park elsewhere on the road if necessary. That practice had continued over the requisite period of 20 years prior to the bringing of the action. The parking was clearly enjoyed as of right in the sense that it was done openly and in the way in which a person rightfully entitled would have used it: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 applied. The extent of the parking must so obviously have exceeded the rights granted to the owners of those properties and was so obviously connected with the businesses in the adjacent buildings, being just where staff and customers would be expected to park, that the owner would have known or had the means of knowing about it.
(3) The tests for whether a prescriptive right to park could exist were whether: (i) the existence of the claimed easement would leave the servient owner with no reasonable use of his land; and (ii) the servient owner retained possession and control of the servient land: Batchelor v Marlow [2001] EWCA Civ 1051; [2003] 1 WLR 764 and Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 applied. Either test involved matters of degree and was fact-dependent. The more precise the space occupied by the vehicle parked and the more permanent the occupation, the more the servient owner would be deprived of any use of that space and the more its possession and control would be illusory, making it less likely that a right would be found to exist. In the instant case, however, the parking was either shared with the servient owner or was capable of being shared because parking was not enjoyed 24 hours a day; the first comers were often and by necessity the defendants’ own tankers, which usually had no need to park later in the day when vehicles associated with the adjoining owners were parked. In the unusual circumstances of the case, a right to park had been acquired by each of the adjoining owners, for itself, its tenants and staff and customers, to park on that part of the road immediately adjacent to its own building.
David Holland (instructed by Eversheds, of Birmingham) appeared for the first claimant; Mark Roscoe (instruced by Bains & Co, of Watford) appeared for the second claimant; Katharine Holland (instructed by the Wilkes Parnership, of Birmingham) appeared for the third claimant; Andrew Fraser-Urquhart (instructed by Arlington Sharmas Solicitors) appeared for the fourth claimant; Thomas Jefferies (instructed by Druces LLP) appeared for the defendants.
Sally Dobson, barrister
