Parking and mooring
Can a right to park exist as an easement?
In Batchelor v Marlow  EWCA 1051 the Court of Appeal proceeded on the basis that a right to park can exist as an easement but held that this would not be the case if the parking was such that the servient owner was left without any reasonable use of his land.
A was the owner of an unadopted dirt road. The public right of way did not extend to the verges. R owned a garage nearby and claimed a right to park six vehicles on the verges of the road, Monday to Friday between 8.30am to 6pm. There was only space for six vehicles on the verges. The easement claimed was a prescriptive one.
An exclusive right to park six vehicles for nine-and-a-half hours every day of the working week left A without any reasonable use of his land, whether for parking or anything else. Such a restriction would make A’s ownership of the land illusory. The right claimed was not therefore capable of being an easement.
In coming to that conclusion the CA applied the following famous dictum in Dice v Hay (1852 in the HL:
- "There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected."
A Scottish case in the House of Lords
The principle in Batchelor v Marlow was doubted in the HL case of Moncrieff v Jamieson  UKHL 42. This was a Scottish case. However, Lord Scott who gave the principle judgment thought that there was no discernible difference on the relevant points between Scots and English law. Lord Scott at para 47:
"It is convenient to start with the question whether a servitudal right to park appurtenant to some identifiable dominant land, ie a right in rem and not simply a contractual right, is recognised by law. In my opinion there should be no doubt that it is and, if there is any such doubt, that doubt should be now dispelled. I can see no reason in principle, subject to a few qualifications, why any right of limited use of the land of a neighbour that is of its nature of benefit to the dominant land and its owners from time to time should not be capable of being created as a servitudal right in rem appurtenant to the dominant land (see Gale on Easements 17th Ed para 1-35).
An essential qualification of the above stated proposition, a qualification that I would derive from the all-important civiliter principle, is that the right must be such that a reasonable use thereof by the owner of the dominant land would not be inconsistent with the beneficial ownership of the servient land by the servient owner. I must later examine the so-called 'ouster' principle, the principle which, it is said, prevents the creation of a servitude if the servitude contended for would prevent any reasonable use being made of the servient land, and some of the authorities relating to that principle. To the extent, however, that the 'ouster' principle is asserting that a servitude must not be inconsistent with the continued beneficial ownership of the servient land by the servient owner, I would unreservedly accept it. If, for example, the nature of the purported servitude were to place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land I would find it very difficult to accept that the right could constitute a servitude."
See also para 59 where Lord Scott comments on the "ouster principle" and casts some doubt on Batchelor v Marlow:
"In my respectful opinion the test formulated in the London & Blenheim Estates case and applied by the Court of Appeal in Batchelor v Marlow, a test that would reject the claim to an easement if its exercise would leave the servient owner with no 'reasonable use' to which he could put the servient land, needs some qualification. It is impossible to assert that there would be no use that could be made by an owner of land over which he had granted parking rights. He could, for example, build above or under the parking area. He could place advertising hoardings on the walls. Other possible uses can be conjured up. 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'? It is not the uncertainty of the test that, in my opinion, is the main problem. It is the test itself.
I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes. The claim in Batchelor v Marlow for an easement to park cars was a prescriptive claim based on over 20 years of that use of the strip of land. There is no difference between the characteristics of an easement that can be acquired by grant and the characteristics of an easement that can be acquired by prescription. If an easement can be created by grant it can be acquired by prescription and I can think of no reason why, if an area of land can accommodate 9 cars, the owner of the land should not grant an easement to park 9 cars on the land. The servient owner would remain the owner of the land and in possession and control of it. The dominant owner would have the right to station up to 9 cars there and, of course, to have access to his 9 cars. How could it be said that the law would recognise an easement allowing the dominant owner to park 5 cars or 6 or 7 or 8 but not 9? 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."
And see Lord Neuberger, in particular at paras 139, 140 and 143:
"Accordingly, it seems to me that, on the respondents' case, a right to park could only be prevented from being a servitude or an easement if it resulted in the servient owner either being effectively excluded from the whole of the land in question or being left without any reasonable use of that land. If the right to park a vehicle in an area that can hold twenty vehicles is capable of being a servitude or an easement, then it would logically follow that the same conclusion should apply to an area that can hold two vehicles. On that basis, it can be said to be somewhat contrary to common sense that the arrangement is debarred from being a servitude or an easement simply because the parties have chosen to identify a precise space in the area, over which the right is to be exercised, and the space is just big enough to hold the vehicle. Also, presumably on the respondents' case, such a right would indeed be capable of being a servitude or an easement if the servient owner had the right to change the location of the precise space within the area from time to time. At least as at present advised, I am not satisfied that a right is prevented from being a servitude or an easement simply because the right granted would involve the servient owner being effectively excluded from the property. In this connection, the Privy Council in Attorney-General of Southern Nigeria v John Holt & Company (Liverpool) Limited  AC 599 at 617 appears to have held that a right to store materials on land could be an easement although it involved the dominant owner enjoying an 'exclusive' right to enjoy the property concerned. … Further, the Court of Appeal in Wright v Macadam  2 KB 744 held that an apparently exclusive right to store coal in a small shed was capable of being an easement.. Further, as Lord Rodger pointed out during argument in this case, a right of aqueduct (or water rights) or a right of drainage is often granted over a specific route, so that that route may often be the full extent of the servient tenement. In such a case, the servient owner is effectively excluded from the whole of his tenement, yet such a right has always been assumed to be capable of constituting a valid servitude or easement .. Accordingly, I see 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 occupation, on the basis that the essential requirement is that the servient owner retains possession and control. If that were the right test, then it seems likely that Batchelor v Marlow was wrongly decided. However, unless it is necessary to decide the point to dispose of this appeal, I consider that it would be dangerous to try and identify degree of ouster is required to disqualify a right from constituting a servitude or easement, given the very limited argument your Lordships have received on the topic."
Back to England
A number of commentators have suggested that Moncrieff has changed the law. In Virdi v Chana  EWHC 2901 (Ch) however a circuit judge, sitting as a High Court judge, nonetheless held that Batchelor v Marlow has not been overruled and so was binding on him.
This was an application to the Land Registry to register a right to park over a single parking space as an easement by prescription. The Land Registry Adjudicator considered that the law had changed as a result of Moncrieff. She came to the conclusion on the facts that 20 years user had been proved and ordered the registration of the easement. The servient owner appealed.
As stated above, the judge on appeal came to a different conclusion on the effect of the Moncrieff decision. He said:
"Despite powerful criticisms of that decision by the House of Lords in Moncrieff v Jamieson  1 WLR 2620,[Batchelor v Marlow] was not overruled and remains binding on me. I must therefore apply it to the present case, unless it is distinguishable."
However, he did distinguish the case and upheld the decision to register on the facts. The reason was that the servient owner only owned half the parking space and parking on it by the car did not render his ownership of the remainder illusory. The judge at para 18:
"However, only part of that area is within the Appellant’s ownership. Exactly what part is in the Appellant’s ownership is not clearly established. What is clear is that the part within the Appellant’s ownership is not sufficient to park a car on. The Appellant would need to trespass on the adjoining unregistered owner’s land in order to park on the Disputed Land. … It cannot, in my judgment, be said that depriving the Appellant of the ability to park on the gravelled area amounts to denying her a reasonable use of the servient land. A user which can only sensibly be effected by committing a trespass on adjoining land (as parking a vehicle on the gravelled area would amount to if exercised by the servient owner) is not a reasonable use of the servient land, and depriving the Appellant of that ability does not render ownership of the servient land illusory."
In Waterman v Boyle  EWCA Civ 115 the Court of Appeal found on the facts that a right to park was not reasonably necessary for the enjoyment of the claimants’ right of way and therefore refused to imply the existence of such a right. There was no detailed analysis of Moncrieff v Jameson in the case as at the end of the day the facts were very different. However, it does seem tolerably clear from the judgment of Arden LJ that she considers that the principles in Moncrieff will be applied to English and Welsh cases where appropriate (paras 3, 25 and 34); contrary to the view of the Deputy High Court judge in Virdi v Chana.
In Kettel v Bloomfold Ltd  EWHC 1422 (Ch) (HHJ David Cooke sitting as a High Court judge) both counsel accepted that "a right to park is in principle capable of subsisting as an easement, depending on its terms" and the judge cited the passage in Moncrieff v Jamieson that there was no difference between the English and Scottish law on this point, and quoted Lord Scott's passage at para 45 (para 11). However, as in Virdi v Chana he noted that "Batchelor v Marlow has not been overruled and remains binding on this court" (para 12). And went on to state that the test that he had to apply was that set out in Batchelor v Marlow. He then held that on a proper construction of the residential leases in the case the tenants had been granted parking easements rather than demises of the parking spaces. The judge also held that the leases did not reserve a right for the landlord to build on the tenants’ parking spaces, nor did it allow the landlord to change the designated spaces, pointing out that a servient owner does not generally have a right unilaterally to extinguish an easement over one area of land on provision of an equivalent easement over another area. Cook J:
“The alleged lack of inconvenience to the dominant landowner is not a reason to imply a right to change what has been granted to him. Nor is it relevant to say that he would have had no reason to require the use of any particular space and that the 'essence' of the right granted is merely to park somewhere; the right granted is to park in a particular space and it simply cannot be construed as being only to park in any place from time to time designated by the landlord”.
(Compare Heslop v Bishton dealt with on the "Substantial interference" page of the site.)
The judge awarded the tenants an injunction preventing the servient owner from building on the parking spaces, applying the principles in Shelfar.
In De La Cuona v Big Apple Marketing  EWHC 3783 (Ch) it was held that on its proper construction a deed provided for the grant of an easement to park despite being called a “lease”. In coming to its conclusion that the deed was effective to grant an easement, because the grant of the parking right did not render the grantor’s ownership of the land illusory, the test laid out in Batchelor v Marlow was applied.
The Appeal Judge noted that Batchelor had been the subject of criticism not least from the House of Lords in the Scottish case of Moncrieff v Jamieson  UKHL 42. However, the case remains binding on English Courts and so the Court had to proceed on the basis that the test was to be applied in the current case. It was also the case that Batchelor did not prevent the validity of rights to park being upheld in several cases in recent years. In particular, the Appeal Judge considered the reasoning of the Court in Kettle v Bloomfield Ltd  EWHC 1422 (Ch) and the judgment of Lord Neuberger in Moncrieff v Jamieson. The respondent had argued that the Court should consider whether the deed precluded not only reasonable user of the two designated parking spaces but of the car park as a whole. The Appeal Judge considered that such an approach would oversimplify matters. Even if the grantor could not make use of the two parking spaces over which rights were granted, it would not be an answer that the grantor could still make use of the rest of the car park.
Thus, first instance judges seem to be doing their "duty" and following the precedent of the English decision in Batchelor v Marlow. The position therefore remains uncertain, but it would seem highly likely that Lord Scott's clear but obiter comments in Moncrieff will eventually prevail.
Car park signs stating car park was private – parking not as of right
 EWCA Civ 482
Signs stating that a car park was private were sufficient to prevent the acquisition of an easement by prescription for parking.
This case concerned adjacent properties used by a club (ST) and a fish and chip shop (DT). DT’s customers and its delivery drivers had parked vehicles in part of a car park belonging to ST, despite the presence of signs stating: “Private car park. For use of club patrons only. By order of the committee”. On a few occasions ST’s steward had asserted that D, their suppliers and customers had no right to park in the car park. DT based their claim for a parking easement by prescription on the basis of "lost modern grant", which required them to show 20 years' uninterrupted user "as of right", i.e. without force (or without contention), without secrecy and without permission. At first instance the First-tier Tribunal found that rights of way and parking had been acquired over the club’s car park. It held that the use was “as of right” despite the presence of the notices. S appealed to the Upper Tribunal, which allowed the appeal. The case was then appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. The Court pointed out that in order to claim a prescriptive easement the use had to be, inter alia, without force, which meant that use must not be contentious or allowed only under protest. The Court considered its decision in the case of Taylor v Betterment Properties (Weymouth) Ltd  EWCA Civ 250 in which it held that notices had been sufficient protest by a landowner so as to make the use of the land by members of the public “contentious” for the purposes of an application to register a town or village green. In the present case the signs had clearly indicated a continuing objection to unauthorised parking.
Mooring boats - s62
 EWCA Civ 1110
In this case it was held that a right to moor boats to a mooring post is a right that is capable of being an easement and that can pass under s62 of the Law of Property Act 1925 (implied creation on conveyance). The burden of proving a contrary intention under s62 (i.e. that no easement has been created) is upon the person seeking to deny the easement. However, note that in coming to the conclusion that the right is capable of existing the reasoning in Batchelor v Marlow was applied. Thus, if the statements in Moncrieff do now represent the law it will be necessary to analyse mooring issues in the light of those statements.