The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that the extent of use claimed destroyed the owner’s ability to use the land, to the point where his ownership was illusory. The court agreed, and declared that there was no easement if it extended to that point.
Tuckey LJ asked: ‘Does an exclusive right to park six cars for 9.5 hours every day of the working week leave the plaintiff without any reasonable use of his land, whether for parking or anything else?’ and he gave the answer: ‘[The plaintiff’s] right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.’
Judges:
Henry LJ, Tuckey LJ, Kay LJ
Citations:
Gazette 12-Jul-2001, [2001] EWCA Civ 1051, [2003] 1 WLR 764
Links:
Jurisdiction:
England and Wales
Citing:
Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Dyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
Cited – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – Bilkus v London Borough of Redbridge 1968
The court was asked to construe the terms of a covenant given by the council to the claimant. . .
Cited – London and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
Appeal from – Batchelor v Marlow and Another ChD 25-May-2000
The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate . .
Cited by:
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.
Land, Limitation
Updated: 18 May 2022; Ref: scu.78279