Implied parking rights

Students of geography could be forgiven for doubting the significance, nay even the existence of motor vehicles at all on the island of Shetland. True, there is a book on the Second World War activities of the Norwegian resistance called The Shetland Bus, but the title is derived from a slang reference to the fishing boats which were used to infiltrate men and materials to the German occupied coast from their British base.

But in Moncrieff v Jamieson [2007] UKHL 42 the House of Lords revealed the shocking truth. Not only are there vehicles there, but enough to give rise to parking problems.

Simplified, the facts were that the pursuers owned land from which access to the public road lay over land belonging to the defenders. There was an express grant dating from 1973 of a 'right of access from the branch public road through Sandsound'. At the date of the grant, vehicle access to the dominant tenement was impossible, access being via a steep slope. If vehicles could not be parked on the servient land the journey to the dominant land would have been very arduous. The pursuers claimed that this also included implied ancillary rights (i) to park on the servient tenement such vehicles as were reasonably incidental to the enjoyment of the access to the dominant tenement and (ii) to stop, turn, load and unload goods and to set down and pick up passengers on the servient tenement.

There are two points of interest in the decision for both Scottish and English lawyers. Firstly, a right to park on the servient land was implied into an express grant of a right of way. Secondly, it is now clear that a right to park on land can exist as an easement, and notwithstanding that this results in the whole of the land being parked on.

Implied right to park

The House of Lords (albeit reluctantly in the case of Lords Roger and Neuberger) accepted the pursuers' case that a right to park should be implied on the ground that without such ancillary rights being implied the express rights of access would, given the difficulties of the terrain, have been of little practical use.

Lord Hope said: 'In my opinion it is impossible to reconcile such hardships with the use that might reasonably have been expected to be made of the servitude right of vehicular access for the convenient and comfortable use of the property'.

The reluctance to sanction the implication of rights of parking was clearly motivated by a fear that to do so would encourage unmeritorious claims to park on the land of others.

As Lord Roger said: 'The extraordinary result of the pursuers' submissions therefore seems to be that, if you are lucky enough to have a servitude of access to your house which has no parking or only limited parking, you get free parking on the servient owner's land because any other solution would be intolerably inconvenient to you, whereas, if you reach the same home via a public road, everyone accepts that you must just gird your loins and traipse off to find a parking space elsewhere'.

On this point, all members of the House stressed the unusual facts justifying their decision.

Nevertheless, there is obvious scope for arguing for similar implication in other cases of express grants of rights of way provided the 'factual matrix' supports it and the normal rules governing the implication of terms in contracts can be satisfied. These require the term to be reasonable and equitable, necessary to give business efficacy to the contract, obvious, and not to contradict any express term.

The House of Lords accepted that the right to park vehicles was not unlimited, but restricted to what was necessary or obvious, which Lord Neuberger thought was for two or at the most three cars.

Parking so as to exclude other uses

One obstacle which has been raised to claims to rights to park in the past is that an easement which deprives the owner of all ordinary use of the servient land will not be recognised.

So while the right to park had been recognised as an easement (see London and Blenheim Estates v Ladbroke Regional Parks [1992] 1 WLR 1278) it could only be an easement if the number of vehicles allowed relative to the size of the servient tenement left space for the servient owner. Hence in Copeland v Greenhalf [1952] 1 All ER 809 a claim for the right to deposit vehicles on a road verge was held to fail on the ground that the claim was in effect for possession to the exclusion of the owner. Similarly in Batchelor v Marlow [2001] EWCA Civ 1051 a claim to the exclusive right to park six cars for nine hours every working day failed for the same reason.

In Moncrieff v Jamieson the House of Lords basically overruled this line of authority. Lord Scott doubted whether Batchelor v Marlow was correctly decided. He pointed out that all easements will bar some ordinary use of the servient land. Rights such as the use of a coal shed, or of storage, or to use a communal garden all restricted the rights of the dominant owner but had been recognised as easements. The real question was whether the servient owner retained possession and control of his land subject to the reasonable exercise of the easement.

Lord Neuberger likewise stated: 'I am not satisfied that a right is prevented from being servitude or an easement simply because the right granted would involve the servient owner being effectively excluded from the property'. He pointed out that the contrary approach would mean that whether the right to park one car on the servient land was a valid easement would depend on whether the area could accommodate one car only (in which case the grant would be invalid) or two.

Parking and adverse possession

It follows from Moncrieff v Jamieson that it will be very difficult to base a claim for possessory title on parking of vehicles at least without other evidence of exclusive possession. Such claims had in any case not generally prospered (see Central Midlands Estates Ltd v Leicester Dyers Ltd [2003] 2 P & CR D1 and more recently Tennant v Adamczyk [2006] 1 P & CR 28.

It is prudent to ensure that any express grant of a right of way expressly excludes a right to park vehicles on the roadway or indeed on any part of the land over which the right is granted, or defines such rights with precision. But more positively, a major question as to the validity of the grant of rights to park has been answered.

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