There have been a spate of cases over recent years concerning the nature and implications of rights granted to park cars and other vehicles. The case of Bachelor v Marlow cast doubt as to whether a right to park could exist as an easement. The case established a test for the validity of an easement as to whether the servient owner was left without ‘reasonable use’ of the land. The Bachelor case was subsequently criticised by the House of Lords in Moncrieff v Jamieson and an alternative test was laid down as to whether the servient owner (over whose land the rights were exercised) could be viewed as having retained ‘control and possession’ of the land.
The judgment recently handed down in Kettel v Bloomfold Limited provides some welcome clarification. The High Court, in applying the tests set out above, held that a right to park was indeed capable of existing as an easement. Having established this point the Court went on to consider whether a landowner, having granted parking rights over its land, had a unilateral right to extinguish and relocate those rights.
The Court held that the general reservation (entitling the landlord to redevelop land outside of the areas actually demised for the residential units) wasn’t such as to override the easement to park. There was held to be no implied right to vary the easement in the absence of an express right to do so. The rights to park were therefore such as to prevent the re-development which the landlord proposed (and had in fact had commenced).
The landlord had seemingly hoped that were the tenant to take proceedings, an award of damages would be granted as opposed to an injunction (require the parking spaces to be provided and redevelopment to cease). The Court held that an injunction was an appropriate remedy to be applied and the redevelopment proposed by the landlord was therefore blocked.
This case highlights the need both for care when setting up new developments to ensure flexibility in the future and also to identify future redevelopment potential as soon as possible.
If you wish to discuss any of the issues raised in this blog please contact Mark Withers at email@example.com.