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Safestore and others v RSN Property Ltd and others

Legal

by

HH Judge Cowell
2009-10-15

 


JUDGMENT


CHY08461


The Land of the Parties and the Dispute.



  1. Eastman Road in Acton is privately owned, and runs southwards from a public highway called The Vale to what has been called “the Dairy Site” at the southern end. As one goes south one passes first, on the right, the land of Rixol Group Inc occupied by Kwikfit (“Kwikfit”), then one passes the land of Spaces Personal Storage Ltd (“Safestore”) also on the right, and at about the same time one passes the land of first Miss Oberoi (“Bombay Duck”) on the left and then the land of Lombard Asset Management (Bahamas) Ltd (“Lombard”) also on the left. This is best understood by looking at the plan at page 299 of the bundle (which bundle consists of many volumes).
  2. The three companies RSN Property Ltd (“RSN”), Nijjar Dairies Ltd and Nijjar Property Ltd are all owned and controlled by members of the Nijjar family, and except where necessary I shall not distinguish between them. At this stage at any rate it is sufficient to say that the Dairy business was started by them in about June 1998, the brewery business that had formerly been there since 1969 having vacated in about April 1998, while the private road was not acquired by them until 28 November 2007 when the road was acquired by RSN. It was acquired by RSN in order that the rights which flow from possession and ownership could be asserted for the benefit of the Dairy business subject to the rights of others disclosed by the various title documents. (The plan at page 299 shows the ownership as between those companies controlled by the Nijjars.)
  3. Those three companies recognise that Kwikfit, Safestore, Bombay Duck and Lombard (the four adjoining owners) have certain rights of access and of loading and unloading of vehicles over the road, but they deny that they have any right to park on any part of the road, such right to park being claimed by the adjoining owners on the basis of prescription under the 1832 Act or by lost modern grant. The principal issues in the dispute were tried on 14 to 18 September 2009 with the submissions of all the parties finally ending at 5.35 p.m. on Friday 18 September.

The general history.



  1. The Dairy business has flourished over the years. In August 2000 the Inspector who decided on appeal to give planning permission subject to conditions permitting inter alia the pasteurising of milk noted that 100,000 litres of milk were then being delivered to the Dairy Site each day, and that the pasteurising would involve over 400,000 litres being delivered each day. Condition 12 of the Appeal Decision of the Inspector limited the hours during which deliveries might be made to the Dairy Site to between 7 a.m. and 6 p.m. Monday to Saturday and not at all on Sundays. That was in the interests of the residents to the south of the Dairy Site. The number of vehicles permitted by the Traffic Commissioner to be kept on the Dairy Site was raised to 13 in February 2000 subject to conditions, then to 20 in August 2000, then to 40 in October 2001, and then down to 25 in January 2006.
  2. Vehicles have during ordinary business hours been left in the road adjacent to the buildings of the four adjoining owners for many years. Aerial photographs taken on 1 April 1980 the Tuesday before Easter (page 620) and on 8 July 1985 a Monday (page 1669) make that quite clear; the vehicles outside Kwikfit being parked diagonally or roughly at right angles to the building, the road being wider there, and the vehicles outside the other buildings being parked close up to the buildings, often with wing mirrors turned in. There is no room for two-way traffic between the vehicles so parked. When parked close up to the buildings there is ample room for a tanker or HGV (and I shall refer to tankers generally rather than distinguishing between the various kinds of large vehicles) to pass in one direction. Outside ordinary business hours there may be few or none of the kind of vehicles shown in the aerial photographs parked, and it is not infrequent for tankers or HGVs to be parked adjacent to the buildings waiting at earlier hours for the Dairy Site to open at 7 a.m. At busy times tankers and HGVs queue up and the road is congested. It happened not to be congested when I visited the site on Wednesday 16 September between 4 and 5 p.m.; vehicles were parked as usual; tankers and HGVs had no difficulty driving past in one or other direction.
  3. The road where it abuts Kwikfit is much wider than where it runs between Safestore on one side and Bombay Duck and Lombard on the other side. The evidence did not disclose when or by whom a double yellow line was painted on the east side of the wider part of the road opposite Kwikfit, perhaps by the local authority erroneously thinking it was part of the highway. The double yellow line is to be seen in the photograph at page 1264q (as can also be seen the red line to be mentioned later). It clearly has deterred many from parking there though some of the witnesses who knew the true position told me they had parked there and had if in receipt of a parking ticket successfully persuaded the authorities that it had no validity. It is convenient to call that side of the road down to the turn off in front of and to the north of the Bombay Duck “the eastern strip”. The same photograph shows the beginning of a pedestrian pavement next to Kwikfit, but the old kerbstones do not continue southwards.
  4. By 20 May 1999 a resurfacing of the road had been completed. The agent, Mr Richard Knappett, for the then owners of the road, Pamplona Ltd., had written to Mr Gurpinar of Lombard (and presumably to others) on 13 April 1999 giving notice that the resurfacing had been “re-scheduled” to take place from Friday 23rd April to Wednesday 28th April 1999 and that

“The planing of the road surface will take place over the weekend, on Saturday and Sunday. It has been necessary to make this rearrangement due to the heavy parking of vehicles in Eastman Road during the weekdays.”


Mr Knappett wrote some months later, on 21 January 2000, to all the owners and occupiers stating that “Parking in the road is forbidden …”. It had no effect on the parking, although it brought about the production at the instance of a local campaigner, Mr Mishiku, of a “News Flash” (page 1744) circulated to businesses in the area stating that Mr Knappett’s letter might not be unconnected with demands of the Nijjar family, and that any covenants forbidding parking had been breached for over 30 years and could not now be enforced.



  1. The acquisition by RSN of the road on 28 November 2007 (together with Units 1 to 4 (to the south of Safestore’s building and to the west of the road)) was followed by swift and somewhat high-handed action. An undated letter stated that with immediate effect any vehicle or object “parked/obstructing any part of Eastman Road (without authority) will be removed by authorised personnel.” The document was in circulation by 3 December 2007. Mr Gurpinar for Lombard promptly reminded Mr Singh of RSN that Lombard had its own car park not part of the road, and on 4 December 2007 the solicitors for Safestore wrote (page 704) claiming a prescriptive easement to park, and further correspondence between solicitors followed.
  2. On 12 December 2007 RSN caused a red line to be painted along parts of the road (though not outside Safestore as a result of solicitors’ correspondence, nor outside Kwikfit). The painting of the red line, involving the moving of vehicles in the way, was photographed by Mr Illane of Safestore (pages 2011-2026). Mr Mishiku was busy that month obtaining statements from many people about their parking in the road over the years.
  3. The claim in this action was issued by Safestore on 18 April 2008. On 30 October 2008 Mr Nijjar took photographs (pages 2364a [etc]) of congestion on the road by reason of the parking of vehicles on both sides of it between Safestore and Bombay Duck.
  4. Fencing by RSN around that part of the road adjacent to Kwikfit followed in November 2008 (photographed later in January 2009 at pages 2364m-p) which prevented anybody from parking, and brought about the joinder of Rixol Ltd as a party to these proceedings. It is understandable that the three Nijjar companies should wish there to be no parking between Bombay Duck and Safestore so that there could be two-way traffic in the narrow part of the road, but the fencing off has no apparent purpose; it has made it more difficult to remove an abandoned Burger van and a few abandoned cars now fenced in, and amounts to telling Kwikfit that because it is not theirs they may not use the land even though the owner RSN has no use at all for it. It is highly unlikely that any tanker or other Dairy vehicle would need to stop there because such a vehicle on that side of the road would be driving away.
  5. I should next mention, so as to maintain some chronological order, the removal of a wholly different fence. Back in October 1999 the Dairy had erected a fence (“the blue fence”) along its boundary with the land of Lombard and part of its boundary with the road leaving two gaps through which vehicles could pass; the position of that fence is shown on the plan at page 406. The fence remains where it bounds Lombard’s land, but was elsewhere removed on 16 March 2009. Mr Gurpinar took photographs of various parts of the road after 12 December 2007 (the red line appears in them) and before November 2008 (when the fencing outside Kwikfit was not there) which are at pages 461 to 521 showing congestion near the entrance to the Dairy in some of which the blue fence since removed is visible (as on page 483 to the right of the tanker). He also took photographs (pages 522 to 540) after the removal on 16 March 2009 of the blue fence; the congestion to some small extent must have been eased by that removal.
  6. I shall state my findings of fact in relation to the parking in the road later in this judgment. It is now convenient to set out the particular rights and covenants which feature in the title documents of the various parties, and then to decide whether, as the three Nijjar companies argue by their counsel Mr Jefferies, there is reason in law why prescription is impossible, for if it is impossible it will be unnecessary to decide if the facts would otherwise amount to prescription.

The Title of Bombay Duck (Miss Oberoi)



  1. The grant to the predecessor in title was made on 30 June 1964 “(i) to pass and repass on foot or with vehicles for the purposes only of obtaining ingress egress and regress to and from [Bombay Duck] over and along the roadway coloured white hatched blue on the plan (ii) to pass and repass on foot only for the purpose [as before] over and along the roadway coloured white cross hatched black on the plan”. The plan is such that vehicular access only goes as far as the north-west corner of the Bombay Duck building though access on foot only may be had along the road adjacent to the west face of the Bombay Duck building.
  2. The covenant which was also made similarly concerned the vehicular access as far as the north-west corner: the same predecessor in title covenanted with the transferors, for the benefit and protection of their adjoining and neighbouring land and for every and any part or parts thereof, which includes the road, and so as to bind the Bombay Duck land in whatsoever hands the same might come, not in any way to obstruct or permit to be obstructed by vehicles coming to and from Bombay Duck the roadway coloured white hatched blue nor to park or to permit to be parked thereon any vehicles belonging to the transferees or their tenants or their respective employees servants or licencees. The covenant is duly registered (under title number MX471144).

The Title of The Dairy Site



  1. The predecessor in title of the Nijjars’ two companies to the Dairy Site (then called Eastmans Dye Works) were granted, together with that Site, on 31 December 1968 a right of way in materially similar terms over the entire roadway. The then vendor and the then purchaser took mutual covenants from each other. The vendor took presumably (though such words are not used) for the benefit of all its land to the west of the roadway (what is now Kwikfit Safestore and Units 1 to 4) and a small piece on the east side (now Lombard) and arguably for the benefit of the road (though such words are not used); the vendor certainly retained the road. The purchaser took presumably (though such words are not used) for the benefit of the Dairy Site.
  2. The vendor’s covenant was given so as to bind “the Vendor’s adjoining property coloured green on the said plan .. into whosesoever hands the same may come” and the plan does not colour the road green, the green being what is now Kwikfit, Safestore, Bombay Duck, Lombard and the Units 1 to 4. The purchaser’s covenant was taken to bind the Dairy Site. Each covenant was not in any way to obstruct or permit to be obstructed the roadway nor to park or permit to be parked  any vehicles thereon save for the purposes of loading and unloading by the vendor or its tenants (the omission of loading and unloading on the purchaser’s part presumably indicating that such activities would happen on the Dairy Site which, unlike the cases of Kwikfit Safestore and Lombard where the buildings all abut the road, had and now has open space next to and on its side of the boundary). (That covenant made by the then vendor does not appear to have been duly registered against the title of Safestore or Rixol (Kwikfit) but was registered against the title of Lombard (NGL457167)). Mr Jefferies argument is based upon the vendor owning the road and the covenant that he gave binding the road’s owners (despite the fact that the road was not part of the land coloured green). I shall return to that argument later.

The Title of Safestore.



  1. The predecessor in title of Safestore to its land (most of it comprising the building and then known as 231 The Vale) was granted, together with that land, on 29 September 1978 a right of way in materially similar terms over the roadway down to the southern end of its land. The covenant made by the predecessor was an indemnity covenant to perform and observe two covenants referred to in entries 1 and 2 on the charges register of NGL93357 “so far as they affect [Safestore’s land] and are enforceable”.  That title number NGL93357 is the title out of which the titles of Safestore, Rixol and Lombard were carved and now comprises only the road and Units 1 to 4, RSN being now the registered proprietor of it. The relevant entry is entry 2 which refers to the mutual restrictive covenants already mentioned (under The Title of The Dairy Site (above))

The Title of Rixol (Kwikfit).



  1. The predecessor in title of Rixol to its land was granted, together with that land, on 16 April 1980 a right of way in materially similar terms over the roadway down to the southern end of its land. No covenant at all was made by the predecessor.

The Title of Lombard.



  1. The predecessor in title of Lombard to its land was granted, together with that land, on 14 April 1983 a right of way in materially similar terms over the roadway past its land. The covenant made by the predecessor was an indemnity covenant to perform and observe three covenants or other matters referred to in entries 1 2 and 3 on the charges register of NGL93357 “so far as they affect [Lombard’s land] and are enforceable”. The relevant entry is the same entry 2 already mentioned.

Do the Covenants preclude Prescription?



  1. I mentioned above Mr Jefferies’ argument based on the facts that the vendor in the transfer of the Dairy Site on 31 December 1968 (i) owned the road and (ii) gave his covenant for the benefit of the Dairy Site and (iii) gave it so as to bind the road.  I shall assume that (iii) is correct, although I do not think it is because the road was not part of the land coloured green on the plan to the transfer. The argument is that any subsequent grant by the owner of the road, which grant the law of prescription presumes, of a right to park would be a breach of that covenant and a derogation from the grant of the Dairy Site in 1968; therefore the grant should not be presumed.
  2. In my judgment the argument of Mr Holland counsel for Safestore supported by Miss Holland for Bombay Duck Mr Roscoe for Lombard and Mr Fraser-Urquhart for Rixol is correct, not because of the number of learned counsel in his support, but because it is compelling: the argument of Mr Jefferies presupposes that prescription cannot stand with the commission of a tort or breach of contract. It is quite clear from the speech of Lord Scott in Bakewell Management Ltd v Brandwood [2004] 2 A.C. 519 at page 544 that a prescriptive right can be obtained by long use that throughout was illegal in the sense of being tortious. “That is how prescription operates” as he said in paragraph 46. Similarly in my judgment if the user is in breach of covenant that is no reason against prescription. As for derogation from grant the answer in my judgment is that the remedy lay in the hands of the owners of the Dairy Site to enforce the covenant when they saw it breached; they were granted that right but did not enforce it; nobody took it from them; they acquiesced in its breach, that being of the essence of prescription, and they lost it.
  3. Similarly the owners of the road and also of the Dairy Site, for the benefit of whose property the predecessor in title of Miss Oberoi to Bombay Duck gave the covenant on 30 June 1964, had the right to enforce the covenant (limited as it was to the part of the road north of the building) but did not do so. Nor did the owner of the road claim in trespass in relation to the use of the other part of the road by vehicles. The acquiescence in the breach of covenant cannot be in my judgment be treated differently from acquiescence in a tort, which is the basis of prescription. Similar too is the case of any other covenant given by Safestore and Lombard.
  4. The case of Beddington v Atlee 35 Ch.D. 317 was about implied grant, and it was necessary to ascertain the situation at the time of the grant and determine which of rival contenders to rights at that time should be considered to have been then granted the rights in dispute. It illustrates a different situation, and does not in my judgment assist Mr Jefferies, there being no dispute what rights were at the time of the transfers in this case granted.
  5. Nor does it seem to me correct to say that the covenant in any of these cases was a condition of the exercise of the right of way granted. The obligation to pay a proportion of the cost of repairing the road was such a condition, as in Halsall v Brizell [1957] Ch 169: see Rhone v Stephens [1994] 2 A.C. 310 at pages 322F-323A. If it could have been enforced it was not.

Sufficient definition of the servient tenement.



  1. Mr Jefferies’ next argument was by analogy to the case of Woodman v Pwllbach Colliery Co Ltd (1914) 111 L.T. 169 at 172. A servient tenement must be defined and so have an area. The alleged easement in that case was the right to spread coal dust, and that might go far beyond any identifiable servient tenement “just as the wind, blowing where it listeth, may chance to carry it” see [1915] A.C. 634 at pages 648-9. In this case the objection made by Mr Jefferies is that it cannot be correct to claim a right to park anywhere on the road. I agree with that, for it would be absurd to seek to park, for instance, in the middle of the road. But there is no claim to park beyond the road, and it seems to me that the easement alleged must be confined to, and defined by, the particular parts of the road where parking has taken place; and those parts are of course all within the road. The alleged rights to park cannot therefore in my judgment be said to be impossible on the ground of insufficient definition.

Other Matters of Law.



  1. The other matters of law are so intimately bound up with the findings of fact that I have to make that I will simply mention them so that the significance of the facts as I mention them may be borne in mind. What parking was there on the road? Was the parking “as of right”? Would the owner of the road have known or had the means of knowledge of the parking over and above the mere passage of, or the loading or unloading of, vehicles? So far as relevant, is RSN deprived of use of the road either wholly or in part by the parking? What possession or control and use, even if shared, does RSN have?

The Facts relating to the parking.


Parking otherwise than on the road.



  1. What parking facilities other than in the road do or did the parties have? The plan at page 2408 (mentioned later) assists in describing some of them. Kwikfit has a car park on its land facing The Vale. For many years that has been the customers’ car park. It has 13 spaces for them in all, two reserved for MOT and one for a disabled customer. Until the fencing off of the adjacent land 5 staff cars, which would remain there during usual working hours, were parked on the road on that land; now they are parked in the customers’ car park which causes much inconvenience, vividly described without exaggeration by Mr Taylor. There are 9 spaces in the workshop for working on vehicles, and relatively simple jobs which take little time were done outside on the road. The effect of the fencing makes the exercise of the known rights of access and loading and unloading, if anything, less convenient than before and confers no obvious benefit on the three Nijjar companies.
  2. Bombay Duck has a small car park at the rear of the building comprising 5 spaces but the access to it is so narrow that no vehicle can park upon it.
  3. Safestore once had a much larger entrance bay just off the road but an extension built in about 1978 in part of the bay has reduced the area (known as the loading bay) to taking three vehicles comfortably and perhaps one more. There is just room for one car in an alley to the north of the building. There is an argument based on estoppel put forward by Mr Holland, and I will come to that in due course.
  4. Lombard has a car park on its land to the south of its building (“Hanovia House”). Before the blue fence was put up by the Nijjar companies in October 1999 on Lombard’s boundary with the Dairy Site 12 vehicles could be accommodated: see the diagram at page 405: 7 had access from the road, and 5 had access by going over the Dairy Site before the blue fence stopped that. The fence occasioned the removal of the refuse container; 5 vehicles can comfortably park where 7 used to, and any parking where the 5 used to park creates a problem; there is a system run so as to stop vehicles being blocked in. In times of congestion, as shown in some of Mr Gurpinar’s photographs, stationary tankers block in all vehicles on Lombard’s own land. There are other matters to be mentioned later in respect of Lombard’s counterclaim (see Miscellaneous below).

Where was the Parking on the road?



  1. It will come as no surprise that I find that generally[1] staff attached to each of the buildings and visitors to each would park on the road as near as possible to the building concerned. If there was no space they would park elsewhere in the road. The particular areas subject to the parking were immediately adjacent to the buildings of Kwikfit where parking was at an angle, and to the buildings of Safestore, Bombay Duck and Lombard, where parking was right up against the building. The aerial photograph of 1985 shows much more of the road parked upon in the time of the Brewery but it is not claimed that those areas are subject to the rights claimed. The parking was clearly enjoyed “as of right”, that is, “”openly and in the manner that a person rightfully entitled would have used it” and not by stealth or by licence” (see R. v Oxfordshire C.C. ex p. Sunningwell P.C. [2000] 1 A.C. 335 at page 351G).
  2. Very many of the witnesses stated that occasionally they might park on what I have called the eastern strip, but since the painting of the double yellow lines that cannot have been nearly as often as on the other areas.

The Owner’s knowledge or means of knowledge.



  1. The mention of the eastern strip leads me to deal next with the argument of Mr Jefferies to the effect that ever since vehicles appeared in the road an owner of the road observing its user would not readily be alerted to the parking being either in excess of the rights actually granted or being referable to the appurtenant owners. A vehicle might belong to a member of the public with no business in the road; or it might have been engaged in loading or unloading even with the doors or boot being temporarily shut. The extent of the parking adjacent to Kwikfit Bombay Duck Safestore and Lombard must in my judgment have been so obviously in excess of the rights granted and so obviously connected with business in the adjacent buildings because it is just where one would expect the parking to be by staff and customers that the owner would have knowledge or the means of knowledge.

The Eastern Strip.



  1. I do however accept the argument in relation to the eastern strip. It has no immediate proximity to any of the buildings of any party, is close to the public highway, and was much less frequently used by staff or visitors to the buildings of the parties. In stark contrast is the parking on the opposite side of the same part of the road outside Kwikfit: in recent times, as some of the photographs show, vans marked with the name of Kwikfit’s business and cars being attended to for new tyres or batteries and the like can be seen, the whole simply looking like an area that an observer might well be assume to belong to Kwikfit, although we know that the actual boundary according to the transfer of 16 April 1980 appears to be the edge of the building.

When was there parking on the Road and over what period?.



  1. There is no reason to doubt the honesty of the many witnesses who gave evidence of the parking, and it would be tedious to rehearse what they said both in their written statements and in oral evidence. Some of them, such as Dr Goode, Mr Brunner and Mr Mishiku, were there in the 1970s. The aerial photographs confirm the actual fact of parking in 1980 and 1985. Some of them were not there as far back as April 1988, the beginning of the period of 20 years “next before” the bringing of the action (the relevant period for the purposes of the 1832 Act), but in the absence of any reason to believe that things changed upon or before their arrival it is readily to be inferred that matters were no different beforehand. In this case the aerial photographs, together with the evidence of those who were there in and before 1988, support such an inference.
  2. There is only in the case of Lombard a reason to believe that things might have changed during that period of 20 years: in 1999 the blue fence prevented access to and from Lombard’s car park over the Dairy Site. Does that mean that before that no vehicles associated with the owner of Lombard’s land parked on the road because there was room on the Lombard car park? Not only do I consider that very unlikely, but it was Mr Mishiku’s oral evidence that the lady he referred to in paragraph 38 of his written statement who regularly visited Hanovia House (Lombard) when owned by the Shepherd’s Bush Housing Association (and before the blue fence existed) left her car outside in the road, as also did the nightwatchman. I accept that evidence.
  3. There was also an instance of change before that period of 20 years, but it does not affect the question of prescription. In about 1978 an extension was built at Safestore which greatly reduced the area available for parking on that land to what is now the present loading area. I mention that at this stage in order to mention what I call the estoppel argument. Safestore add this argument ably advanced by Mr Holland though he wisely devoted much more of his time to his good arguments: the owner of the road stood by while the extension was built knowing that the cars formerly parked where the extension was built would have to park elsewhere and so would park on the road, with the result that RSN is now estopped from denying Safestore parking rights on the road. I do not accept that argument. It assumes a particularly far sighted owner of ingenious imagination, alert to see some detrimental element on the part of the then owner of Safestore when building an extension advantageous to its business, who, though unable to prevent the building, ought, appreciating that a right to park was a consequential expectation of the then owner, to have positively reminded the then owner that parking on the road would not be permitted.
  4. In short I find on all the evidence that there was apparent and continuous parking on the road in the areas I have mentioned both during as well as before the period of 20 years for the purposes of the activities in the buildings or (in other words) appurtenant to them. That parking was clearly “as of right”. I pay tribute to the efforts made by Mr Mishiku in seeking out the witnesses, none of whom was in any way reluctant to come and tell the court what in my judgment was true.

When in 24 hours was there parking?



  1. Experts have prepared reports, but in order to accommodate the trial within 5 days the parties wisely suggested that I should find the facts without reference to such expertise as might be applied for other purposes, although reference might be had to any factual evidence in their reports which might assist. Reference was made to a table at page 2419 which shows when vehicles of a particular kind were parked during certain hours on particular parts of the road between 6 a.m. and 7 p.m. on Wednesday 16 July 2008. The parts of the road can be seen on the plans at pages 2407 and 2408, the latter showing the number of spaces outside the four properties. Plot 1 on page 2419 is the eastern strip as I have called it and the last four plots on the table are immediately up against Kwikfit, Bombay Duck, Safestore and Lombard respectively. It is to be noticed that only one vehicle (which was of type A) was that day parked at any one time on the eastern strip, one between 6 and 7 a.m., and another between 2 and 4 p.m., and only one vehicle was parked outside Bombay Duck and one outside Safestore between 6 and 8 a.m. The busiest parking times were between 11 a.m. and 4 p.m.
  2. There was no observation kept by the experts between 7 p.m. and 6 a.m. What is apparent from the photograph at page 551 is that large milk tankers park outside Bombay Duck in the early hours waiting for 7 a.m. when they may drive onto the Dairy Site, and the evidence of Mr Halifax who often worked late in the Bombay Duck building was that he often noticed parked milk tankers outside the building. Thus if there were no other vehicles parked at night outside Bombay Duck and Lombard that part of the road could be and was when needed used by vehicles waiting to go onto the Dairy Site. It is to be noticed from that photograph that at that time of day only one car was then parked outside Safestore.
  3. It is perhaps an unusual feature to find in this case that RSN, the servient owner of the road, by and for its associated Nijjar company running the Dairy business, also uses the servient tenement for parking, as do the owners of the dominant tenements who certainly have rights of way over the servient tenement and also park on it, all of them parking on the basis of first come first served. The times of first coming vary in this case, RSN coming first to park in the hours before 7 a.m. and moving away thereafter, and the staff and customers of the four dominant owners first coming during the usual daily business hours and moving away at or before their closing. In times of congestion when the tankers queue for admittance to the Dairy Site the complete absence of parking by the dominant owners would increase the waiting areas for the tankers.
  4. The emphasis of the case as put by the Nijjar companies, and the ideal they seek, is that there should be two way traffic between the buildings on the narrow part of the road, rather than one way traffic. The emphasis of the case as put by the dominant owners is that frequently the traffic on the way in consists of stationary tankers, certainly before 7 a.m., and the actual movement of other moving vehicles in one direction or the other is necessarily only one way by reason of the tankers parked in the road. They also point out, as is the case, that the ideal of having two way traffic will from time to time be thwarted by the presence of vehicles loading or unloading as they are entitled to do.

Has a right to park been acquired?



  1. It appears to be the law that there can be such a thing as a right to park, and that it can be acquired by prescription, just like an easement of way: see Moncrieff v Jamieson [2007] 1 W.L.R. 2620. What is debatable is: what are the facts or attributes which taken together constitute a right to park? For if the facts justify the existence of such a right in this case I am quite satisfied that it has been acquired by prescription, and the arguments that prescription is ruled out in some way I do not accept, as I have explained.
  2. I am aware that it may well be said that the law has shifted in favour of recognising a right to park where none was recognised in the past, and no doubt it came as no surprise to anyone that in the days when Mr Harman Q.C. and Mr Denning Q.C. opposed each other in 1939 in Le Strange v Pettefar (1939) 161 L.T. 300 “Mr Harman .. admitted that the right claimed [to stand the Defendant’s vehicle on the Plaintiff’s land] was not an easement.” Therein lies an element of injustice in a finding against RSN. As against that there lies an element of injustice in denying the adjoining owners the enjoyment they have openly had over many years for the obvious benefit of their and their tenants’ businesses, particularly in the case of Kwikfit where neither RSN nor the Nijjar companies appear now at any rate to have any wish to use the adjacent land.
  3. What are the facts or attributes in this case?  What is the test for the existence of such a right? In Moncrieff it was “the geography” (page 2638H) which meant that it could not be said that there was a right of vehicular access without a right to park, and the exact location of the parking could change. In Batchelor v Marlow [2003] 1 W.L.R. 764 it was “common ground” (see page 767C-D) between the parties that the test was whether the servient owner would be left without any reasonable use of his land; if he was so left there could not be an easement. The test favoured in Moncrieff depends (see page 2643B) upon “whether the servient owner retains possession and, subject to the reasonable exercise of the right in question [to park], control of the servient land.” Either test involves matters of degree, and must necessarily be very “fact dependent”.
  4. Two matters or themes call for consideration. The first is that the more precise and same is the actual space occupied by the thing parked and the more permanent that occupation, the more unlikely the right, because on either test it can be said (i) the servient owner is deprived of any use of that space, at any rate if the thing remains permanently there, and (ii) the owner’s possession and control is the more illusory. The second matter or theme is that the more varied the location of the thing parked from time to time the more difficult it may become to identify the location of the servient tenement burdened by the right to park and outside which the owner is entitled to forbid any parking.
  5. Thoughts along the lines of the second matter have led me to conclude, as I have already done (see Sufficient definition of the servient tenement and The Eastern Strip above), that the eastern strip ought not to be any part of a servient tenement subject to parking rights, and to conclude that it is necessary to identify only particular parts of the road where the parking rights may be exercised.
  6. The first matter invites attention in this case to the question of the permanence of the occupation by the parked vehicle, and the adjoining owners add as part of their argument the shared nature of the parking. I should be very reluctant, and I expect any court would be equally reluctant, to recognise, and so would not find, a right to park one’s private car on a neighbour’s land (except in the most unusual circumstances or “geography” illustrated by Moncrieff) for that would involve a high degree of permanent parking: all day and night except when the car is taken out, that being where the car is “kept” in the usual sense of the word. The question in this case is whether there is a sufficient difference of degree to enable a right to park to be held to exist.
  7. Generally speaking there is no reason why an easement cannot be enjoyed “in common with others entitled to the like right”, as the conveyancers would put it. The adjoining owners do not claim the right to park for vehicles that could ordinarily be said to be “kept” on the road, except that they do remain there during usual business hours. At other hours tankers associated with the Dairy Site are parked in the same places outside Bombay Duck and Lombard, thus sharing that enjoyment. When the road surface has to be repaired RSN will be entitled to require the road to be cleared, as its predecessor in title did in 1999, and that will be easier to achieve in practice at week-ends when parking is less heavy. The land adjacent to Kwikfit does not appear because of the fencing to have any use for RSN or the Nijjar companies, and Kwikfit has no need to park there outside usual business hours. The same goes for Safestore. Tankers would not ordinarily have occasion to park adjacent to Safestore or Kwikfit, at any rate during usual business hours, because they would be driving out on that side of the road.
  8. The unusual circumstance in this case is that the parking is either shared with the servient owner, or if not shared, is one that could be shared because parking is not enjoyed 24 hours of the day; furthermore the sharing is possible because the first comers to park before 7 a.m. are often and by necessity the tankers, and after that time more often the vehicles associated with the adjoining owners, by which time except in periods of congestion the tankers have no occasion to park at all on the road.

Conclusions



  1. It seems to me therefore, and I so find, that a right to park has in the unusual circumstances of this case and on this particular commercial area been acquired by each of the adjoining owners, whether the test be that applied in Batchelor v Marlow or that propounded by Lord Scott in Moncrieff v Jamieson.
  2. During final submissions there was some debate about the definition of the right, whether the number of vehicles should form part of it, or whether the particular location of the parking area should form part of it. Other questions have occurred to me, such as whether, for example, the staff of Safestore might park adjacent to Kwikfit. The plan at page 2408 indicates the number of spaces for what one might call cars of average size: 10 adjacent to Kwikfit; 6 adjacent to Safestore; 6 adjacent to Bombay Duck; and 4 adjacent to Lombard.
  3. In my judgment the areas parked upon must be identified; they provide the upper limit of the right, whereas an upper limit defined by reference to the number of vehicles would be inappropriate. In the example just mentioned I do not consider that Safestore has any right to park adjacent to Kwikfit because prescription requires the knowledge or means of knowledge on the part of the servient owner of the user. Although, as I have found, the extent of the parking adjacent to Kwikfit Bombay Duck Safestore and Lombard must have been so obviously in excess of the rights granted and so obviously connected with business in the adjacent buildings because it is just where one would expect the parking to be by staff and customers that the owner would have had knowledge or the means of knowledge, that connection must in my judgment be with the respective buildings. The rights to park so prescribed should in the case of each of the adjoining owners be expressed along such lines as “the right for itself its tenants and staff and customers authorised by it or them in common with the owner of the road and others authorised by the owner of the road to park on that part of the road immediately adjacent to the building known as [that adjoining owner’s building]” That draft can be improved or refined with the aid of counsel.

Miscellaneous Points.



  1. When the blue fence was erected in 1999 between the Dairy Site and Lombard it barred all access to Lombard’s car park over the Dairy Site, and as a result correspondence passed between the solicitors for Lombard and for the Dairy Site. In the course of a long letter dated 26 January 2000 written by Lombard’s then solicitors (pages 1746-7) there is a paragraph which begins: “Our clients have their own car park. They make no claim to park on Eastman Road. The parking in the central area in particular is an obstruction to our clients as well as yours.” In the context of that dispute the area of Eastman Road referred to was where parking used to occur, which was near the entrance to the Dairy Site. The parking there is well evidenced by the aerial photograph of 1985, which now no longer happens. The statement was not made to the owner of the road. Even had it been the subsequent parking adjacent to Lombard’s building would have demonstrated to the owner of the road that the statement, if referable to that part of Eastman Road, could not be relied on. In my judgment none of that detracts from Lombard’s user of the land adjacent to its building for parking being as of right.
  2. Lombard has a particular claim against  Nijjar Dairies Ltd. It is pleaded at pages 100 to 102 in paragraphs 15 onwards. Tankers visiting the Dairy Site before part of the blue fence was removed created large ruts near the kerb near Lombard’s car park. The photographs at pages 478, 480, 483, 485 491-3 best show tankers or other large vehicles over the kerb, and the resulting damage can best be seen in photographs 490, 497 to 500. The claim is put in trespass.
  3. The plan of Lombard’s registered title (at page 1596) indicates that the kerb is not the boundary of Lombard’s land but is on part of the road. Even bearing in mind the general boundaries rule it does not seem to me that it is established that the damage was done on land of Lombard. The damage did in practice substantially obstruct the right of Lombard to go to and from at least two spaces on its car park until repairs were done. At my visit to the site the repairs were adequate to permit vehicular access though they were done with what Mr Gurpinar called “leftover rubble”. It was not the evidence of Mr Gurpinar that he had spent anything in repairing the damage, nor did he provide any suggestion for quantifying any loss occasioned by the obstruction, or state the period of that obstruction, that is, when the obstruction first happened and when the repair was done. It is therefore impossible to assess any damages.

A Final Observation.



  1. Mr Holland at one stage stated that this case raised interesting points of law about the nature of a right to park. It does indeed do that, but that is as comforting a piece of news to the parties as it is to be told by physicians of the utmost fame that you have an interesting condition and that there may be no cure for this disease. The debate may well continue in the appellate courts. Agreement may bring about a better resolution than continuing litigation, but no court can impose any agreement; it can only determine rights. It seems to me unfortunate that there was no attempt by RSN to negotiate an arrangement with the adjoining owners about such matters as the hours of parking, and what areas, such as the eastern strip and maybe the site of the abandoned Burger van which does not appear to have hindered anybody by its presence, might be made available at certain hours and be marked out as available to certain people. It may not be too late to make such an arrangement.

Judge Cowell                           


15 October 2009.





[1] Miss Oberoi sometimes parked her car on the Safestore side of the road so that she could see it from inside her building, an exception to what generally happened.

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