Property – Car parking – Respondents claiming right to park vehicles for benefit of their property – Adjudicator finding right acquired by prescription – Appellant claiming easement not capable of existing in law – Whether easement capable of giving dominant owner exclusive right to park in single space – Appeal dismissed
By an application dated August 2004, the respondents claimed rights acquired by prescription to park vehicles in two spaces for the benefit of their property. They subsequently reduced their claim to only one car-parking space. The application was referred to adjudication.
In 2006, pursuant to an adjudicator’s order, the respondents produced a plan indicating the area over which the prescriptive right was claimed, namely a rectangular area coloured yellow on the plan. Part of the yellow land was within the appellant’s title and was within what appeared to be an unregistered title forming a section of an access way between two neighbouring properties over which the respondents had a right of way.
The adjudicator found on the facts that the respondents had proved user of the requisite quality for 20 years so as to justify registration of the right to park as an easement and that the easement claimed was capable of existing in law. She decided that the respondents were entitled to register the benefit and burden of an easement to park over the land that the appellant part-owned.
The finding as to user was not appealed, but the appellant challenged the adjudicator’s decision that the easement claimed was capable of existing in law. She contended that an easement giving the dominant owner an exclusive right to park in a single parking space could not exist. The adjudicator had found that there was space to park only one car on the disputed land.
Held: The appeal was dismissed.
An easement could not be claimed if deprived the servient owner of the benefits of ownership. However, in the instant case, the only sensible use of the land of which the servient owner (that is, the appellant) was deprived was the right to park a car on a gravelled area. Only a part of that area came within the appellant’s ownership and that part was not sufficient to be used to park a car. She would have to trespass on the adjoining unregistered owner’s land in order to park on the disputed land; she had a right of way over the adjoining unregistered land but did not have the right to use it for parking. The respondents did have such a right, having acquired it by prescription.
It could not be said that depriving the appellant of the ability to park on the gravelled area amounted to denying her a reasonable use of the servient land. A user that could sensibly be effected only by committing a trespass on adjoining land was not a reasonable user of the servient land, and depriving the appellant of that ability did not render ownership of the servient land illusory: Batchelor v Marlow [2001] EWCA Civ 1051; [2003] 1 WLR 764 distinguished; Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 considered.
William Hansen (instructed by Geoffrey T Smith & Co, of Wolverhampton) appeared for the appellant; John Stenhouse (instructed by Bhakar Tomlinson, of Telford) appeared for the respondents.
Eileen O’Grady, barrister
