PP 2013/51 Claims to legal rights to park have truly come of age
The status of parking rights has sparked numerous legal disputes. A strong line of authority, culminating in the Court of Appeal decision in Batchelor v Marlow [2001] EWCA Civ 1051 suggested that rights to park did not constitute legal easements if the exercise of such rights had the effect of depriving a landowner of the reasonable use of its land. More recently, in Moncrieff v Jamieson [2007] UKHL 42, Lord Scott suggested that the legitimacy of such rights should depend on whether the landowner retains possession and control of the burdened land.
The English courts were quick to take the hint and we have seen a series of successful claims to rights to park in various shapes and guises. The county court decision in European Urban St Pancras 2 Ltd v Glynn [2013] PLSCS 67 provides us with yet another success story.
The status of parking rights has sparked numerous legal disputes. A strong line of authority, culminating in the Court of Appeal decision in Batchelor v Marlow [2001] EWCA Civ 1051 suggested that rights to park did not constitute legal easements if the exercise of such rights had the effect of depriving a landowner of the reasonable use of its land. More recently, in Moncrieff v Jamieson [2007] UKHL 42, Lord Scott suggested that the legitimacy of such rights should depend on whether the landowner retains possession and control of the burdened land.
The English courts were quick to take the hint and we have seen a series of successful claims to rights to park in various shapes and guises. The county court decision in European Urban St Pancras 2 Ltd v Glynn [2013] PLSCS 67 provides us with yet another success story.
The case concerned a site that was earmarked for residential development. The adjoining landowner claimed the benefit of a prescriptive right to park vehicles in three separate areas of the site for the purposes of her business. The evidence confirmed that the site had been used for parking for more than 20 years, after which the site owner offered to formalise the position by granting a tenancy at will. The tenancy at will was subsequently replaced by a two-year lease, which was contracted out of Part II of the Landlord and Tenant Act 1954.
When the relationship between the parties broke down, the site owner sought to recover possession of the site. The adjoining landowner relied on the doctrine of lost modern grant to support her claim to an easement. The doctrine is a useful alternative to a claim under the Prescription Act 1832 because the court does not require claimants to show user up until the date on which legal proceedings are commenced to establish the existence of the easement.
The site owner argued that the rights claimed were not capable of constituting an easement because it had not had any use of the site. However, the county court upheld the claim. The judge distinguished between use of land to the exclusion of the landowner and user where the landowner can make other uses of the site, but chooses not to do so.
The adjoining landowner had parked cars on the site during the day, and sometimes overnight as well, without excluding the site owner from the land. The site owner could have made other uses of the land – and the fact that it chose not to do so did not prevent an easement from arising.
Claims to prescriptive easements will be rejected if the use was forcible, secret or permissive. However, claimants who have used land openly, without force, and without obtaining permission to do so, can acquire prescriptive rights for the benefit of land in their ownership. In this case, the grant of the tenancies ended the non-permissive use of the site, but this did not mean that the previous qualifying use had been permissive. Consequently, the adjoining landowner had acquired prescriptive rights to park on the site under the doctrine of lost modern grant, which would have an adverse impact on future development.
Allyson Colby is a property law consultant
