Waterman and another v Boyle and another

Easement – Right of access – Car parking – Dispute over access to neighbouring properties – Whether right of vehicular access implying right to park – Whether respondents having right to park over appellants’ drive – Appeal allowedThe appellants owned a property that they had converted into three separate but connected dwellings. They retained the first but sold the second and third; the respondents subsequently purchased the second dwelling. Since the appellants had wanted to limit the access and parking rights of the new dwellings, the shared vehicular right of access and egress conferred by the initial transfer of the second dwelling was over part only of the northern entrance drive. The owners of the second dwelling were also entitled to park cars on two designated parking spaces to the left of the front door. In addition, the transfer granted a shared right of access to part of the rear of the second dwelling, upon which the respondents’ predecessor had erected a double garage.Initially, parking did not present any difficulty because the appellants permitted temporary parking on their land. However, in around 2003, disputes erupted concerning parking and the appellants altered the layout of the traffic island on the northern entrance drive. In 2004, they built a wall near the southern boundary of the lane that made it impossible for the respondents to turn their cars from the lane into their garage, although their predecessor had been able to access the garage with smaller cars. The appellants also prohibited parking by visitors to the second dwelling in the northern entrance drive except for loading or unloading or parking in one of the two allotted parking spaces. The respondents brought a claim to determine, inter alia, the rights of access to their garage from the lane and their parking rights over the appellants’ drive. The county court determined the principal areas of dispute in favour of the respondents and awarded damages for substantial interference with their right of access.The appellants appealed. The issues for the Court of Appeal were whether the right to park was to be implied from a right of vehicular access and the extent of the respondents’ parking right over the appellants’ drive. Held: The appeal was allowed.An act would be actionable in nuisance by the party entitled to a right of access if it substantially interfered with a reasonable use of the right: Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204 applied. Building a boundary wall was an ordinary and reasonable use of land. In the instant case, the appellants were entitled to sell the land south of the lane and, in the absence of some special circumstance, it was reasonable for them to build a wall on that land to mark the boundary with the lane. It was regrettable that the appellants built the wall in the knowledge that it would make it difficult or impossible for their neighbours to enter their garage, without having the courtesy to consult or warn them. Moreover, it was not unreasonable for the respondents to use larger cars than their predecessor. However, those facts were insufficient to render actionable what the appellants had done on land beyond the lane.The test to be applied in respect of parking rights was whether, having regard to the circumstances at the time of the transfer, it was reasonably necessary to use the land for stationing vehicles for the duration of the user’s visit to the property. It was insufficient that the use was merely desirable: Cannon v Villars (1878) LR 8 Ch D 415, Bulstrode v Lambert [1953] 1 WLR 1064 and London & Suburban Land & Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480 considered.A right to park could be implied into a right of vehicular access if the right to park was reasonably necessary for the exercise or enjoyment of that right. In the instant case, had the parties intended a further right of parking, the transfer would have indicated that intention. Nothing in the surrounding circumstances at the time of the transfer supported the implication of a further right. Where an express right attached to a property, of a similar character to the right that was sought to be implied in respect of the same property, it was unlikely that the further right would arise by implication. The circumstances would have to be exceptional: Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 distinguished. Per curiam: Although it was often true that a party could do what it wanted on its own land, it was not always so and the law expected neighbours to show some give and take. The parties to boundary disputes and their advisers should have this in mind at all times and they should seek to resolve their disputes and without resort to litigation.Duncan Kynoch (instructed by Austins LLP, of Luton) appeared for the appellants; Philip Jones (instructed by Debenhams Ottoway, of St Albans) appeared for the respondents.Eileen O’Grady, barrister