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Parking

This page deals with the issue of whether or not a right to park (or moor a boat) can exist as an easement.


Can a right to park exist as an easement?

Introduction

In Batchelor v Marlow [2001] 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.

Facts

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.

Held

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 [2007] 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 d ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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