Can a parking right be an easement?

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Parking is a hot topic! There have been an extraordinary number of cases involving parking disputes over the last few decades, almost certainly because the absence of a right to park can substantially reduce the value of both commercial and residential land.

In Copeland v Greenhalf [1952] 1 Ch. 488 Upjohn J considered that a claim which amounted to the whole beneficial use of land was not an easement and, to succeed, must amount to a successful claim for possession by reason of adverse possession.  As pointed out by Lord Neuberger in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 W.L.R. 2620 at §135 this has been relied upon in a number of cases to suggest that the right to park cannot be an easement.  In London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 the Deputy Judge rejected an argument that Copeland v Greenhalf was wrongly decided and his decision was affirmed on appeal at [1994] 1 W.L.R. 31. 

The principle was developed further in Batchelor v Marlow [2003] 1 W.L.R. 764 which concerned a dispute regarding parking on a strip of land.  The judge declared that the defendants had acquired an exclusive prescriptive right to park cars.  Overturning the judge, the Court of Appeal held that such a right would leave the plaintiffs without reasonable use of their land and so could not constitute an easement.  The owner’s use of land was rendered illusory.  Following this decision the test became as set out by the Court of Appeal in Batchelor v Marlow.

However, the decision in Batchelor v Marlow has been doubted at the highest level.  In Moncrieff v Jamieson the Supreme Court considered the question of whether a right to park was ancillary to a right of vehicular access.  On the extreme facts of that case, it was held that there was such a right. In so holding the Court considered whether Batchelor v Marlow was correctly decided: see Lord Scott, at §59-60 and Lord Neuberger at §134-144.

Lord Scott expressed the view that the principle as stated in Batchelor v Marlow “needs some qualification.”  He observed that the owner of land over which parking rights existed could not be said to be unable to make any use of his land.  Examples he gave included building above or under the parking area or placing advertising hoardings.  Lord Scott also asked: “And by what yardstick is it to be decided whether the residual uses of the servient land available to its owner are “reasonable” or sufficient to save his ownership from being “illusory”?” although he pointed out that his primary concern was not the uncertainty of the test, but, rather the test itself.  Lord Scott doubted whether Batchelor v Marlow was correctly decided and considered that “I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.”

Lord Neuberger considered that he saw no reason in principle why a right to park was not capable of being an easement: see §137.  He noted that if a right to park in an area that could hold twenty vehicles was capable of being an easement then logic dictated that the same principle would apply to an area which could hold two vehicles.  On that basis, it defied common sense to suggest that there was no easement simply because the parties had identified a particular space over which the right was to be exercised and that space was just big enough to hold the vehicle.

Two key cases had not been cited to Upjohn J, as noted by Lord Neuberger at §140 of Moncrieff v Jamieson.  So, in Attorney General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 the Privy Council held that a right to store materials on land could be an easement although this involved the dominant owner enjoying an “exclusive” right to enjoy the property concerned.  Further, in Wright v Macadam [1949] 2 KB 744 a right to store coal was capable of being an easement.  Accordingly, Lord Neuberger saw “considerable force in the views expressed by Lord Scott in paras 57 and 59 of his opinion to the effect that a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive possession, on the basis that the essential requirement is that the servient owner retains possession and control.”  He concluded that were this the correct test it “seems likely” that Batchelor v Marlow was wrongly decided.  However, Lord Neuberger sounded a note of caution in light of the limited argument on the issue and was concerned that difficulties could arise which had not be explored in the “very limited argument” on the issue heard in Moncrieff v Jamieson.

It appeared that the observations of Lord Scott and Lord Neuberger in Moncrieff v Jamieson were something of a green light for argument that Batchelor v Marlow was wrongly decided.  But, it is now a decade since judgment in Moncrieff v Jamieson.  Although, litigation about parking remains a fertile source of work it is striking that no party has had sufficient determination, or deep enough pockets, to advance the argument.  Instead, the courts have adopted a general practice which appears to involve distinguishing Batchelor v Marlow in most cases, and I consider a few examples of this approach. 

HHJ Purle QC grappled with the issue in Virdi v Chana [2008] EWHC 2901 (Ch). He considered that the adjudicator had been wrong to accept that the test of user in Batchelor v Marlow had been modified by Moncrieff v Jamieson to one of possession and control, and (correctly) noted that, notwithstanding the criticisms of Batchelor v Jamieson in Moncrieff v Jamieson, the Supreme Court had not overruled it, and therefore it remained binding.  However, he felt able to distinguish Batchelor v Marlow on the basis that the parking space was adjacent to Mrs. Virdi's property and she had the ability to alter the surface for aesthetic reasons. The adjudicator had correctly noted that Mrs. Virdi was still able to maintain the part of the land that she owned and to deal with it as the owner in that she had the ability to alter the surface of the land, maintain her fence, and plants providing they did not interfere with the parking.  None of those users of land could be dismissed as insignificant or illusory.

Begley v Taylor [2014] EWHC 1180 (Ch) involved a dispute between neighbours in a cul-de-sac which was accessed via a private road.  The defendants, began works to construct a gate and the claimants protested that this was an interference with their rights of way because it would prevent them from turning their cars around, would halve the width of the access road creating a closed forecourt for the defendants, and anyone visiting the defendants would have to park in such a way to interfere with their use of the access road.  The Deputy Judge distinguished Batchelor v Marlow, holding that the defendants' right of way had not been rendered illusory.  Batchelor v Marlow was again distinguished in R Square Properties Ltd v Nissan Motors (GB) Ltd (unreported, Chancery Division, 13 March 2014) in which the Deputy Judge’s finding that a company's exclusive right to use parking spaces on an industrial estate constituted an easement was upheld. The basis upon which Batchelor v Marlow was distinguished was that the owner of the servient land had not been completely deprived of the reasonable use of the land by virtue of the company's exclusive right to park. 

However, the principle in Batchelor v Marlow has been applied in cases following Moncrieff v Jamieson, see for example Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch) and De Le Cuona v Big Apple Marketing Ltd (unreported, Chancery Division, 12 April 2017) in which it was held that the deed granted an easement which was effective because the use did not render the use of the land by the owner illusory.  Accordingly, the observations of Lord Scott and Lord Neuberger on Batchelor v Marlow remain the elephant in the room in such disputes.  There must come a case in which it is not possible to distinguish Batchelor v Marlow and so the appellant courts will consider full arguments on the issue and formulate a different test.  For my part, I am of the view that this is likely to be the test formulated by Lord Scott and supported by Lord Neuberger. 

Tanfield’s Iain Mitchell QC acted for the successful respondents in Moncrieff v Jamieson, the leading case on establishing the existence of an easement of parking.