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In a reserved judgment dated 6 June 2023, HHJ Monty KC struck out the Defendants’ assertion in their defence that their land benefitted from an easement of parking by implication. The transfer in question was dated 14 July 1971 and included an express grant of a right of way over a road in favour of the Defendants’ land. The Claimant sought an injunction prohibiting the Defendants, who operated a car workshop on their land, from parking their customers’ cars on the road in question. The Defendants defended the claim, in part, on the basis that the transfer included an easement of parking as a right ancillary to the right of way. Having analysed the transfer in question and taken the Defendants’ evidence at its highest HHJ Monty KC concluded that the Defendants’ assertion was “without any prospect of success” and struck it out.
The House of Lords in Moncrieff v Jamieson [2007] UKHL 42 recognised that an easement of parking could exist as ancillary to a right of way if it was necessary for the enjoyment of the right of way. For it to do so, the right had to be implied into the transfer in question with reference to the facts and background which existed at the date of the transfer. On the facts of this case 3 factors militate against the implication of the ancillary right as follows: (i) the Defendants’ land at the date of the transfer already had 3 private parking spaces; (ii) the transferee in the transfer covenanted not to obstruct rights of way over the land in favour of other properties; and (iii) the earliest date on which the Defendants’ witnesses could give evidence of was 1984; some 13 years after the transfer.
HHJ Monty KC’s decision puts paid to the contention that an easement can be implied into the transfer in question. The Defendants’ claim to an easement of prescription remains. The trial judge will, in due course, have to grapple with: (i) the extent of the easement – over what specific land should it exist; (ii) the terms of use – the land in question is part of an industrial estate and the Defendants’ evidence is that they competed with other units to park on the land in question; and (iii) the rights of other users – all units on the estate in question benefit from a right of way over the land which the Defendants claim an easement to park on.
As an aside, the law on easements of parking still requires clarification. Specifically, Courts in England and Wales remain obliged to follow Batchelor v Marlow [2001] EWCA Civ 1051 (the criticism by the House of Lords of the decision in Moncrieff being obiter) which provided that a right to park cars, on Mondays to Fridays between 9.30 am until 6.00 pm, on a strip of land was incapable of being an exclusive prescriptive easement because the use of the land was so intrusive as to render the title owner’s ownership illusory. Batchelor has, however, been progressively marginalised (see Virdi v Chana [2008] EWHC 2901 (Ch); Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch); and De La Cuona v Big Apple Marketing Ltd [2017] EWHC 3783 (Ch)) and is ripe for review.
Rupert Cohen acted for the successful Claimants instructed by Andrea Nicholls at Penningtons Manches Cooper LLP.
The judgment may be accessed here.
