A Practical Guide to the Law of Parking in Great Britain

In A Practical Guide to the Law of Parking in Great Britain, Iain G Mitchell KC, for the first time ever, provides clear and comprehensible guidance for all who wish to know the legal answer - under both English and Scottish law - to that deceptively simple question: “Can I park here?”

Apart perhaps from boundary disputes, few areas of land law generate as much heat, and cause litigants to act as irrationally as parking. 

The answer to the simple question “can I park here?” can be altogether different depending upon whether “here” is a public road, a private road, a council car park, a private car park, or whether the owner of the car park is a member of a relevant trade association or an independent actor, and whether the person who wants to park is a member of the public, a tenant, or an owner of adjacent land, or whether he has business with the tenant or owner. 

Throw into the mix the issue of whether the parking is of right, by permission, based in contract or depends on a proprietary right such as servitude or easement, and the picture becomes even more complicated.  

It is little wonder that the complexity of the legal background adds fuel to the litigation fire. 

There is a certain note of exasperation in the comments of Lady Justice Arden in the court of Appeal in Waterman v Boyle [2009] EWCA Civ 116 at paragraphs [39] and [40]: 

“There is a common misunderstanding that an Englishman’s home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours. In this case, Mr Boyle and Ms Gwilt, in an effort to stop parking on the northern drive, had even engaged a clamping firm and put up warning notices about the risk of clamping (which never in fact occurred). In related proceedings brought by the Watermans against their solicitors, in which Mr Boyle gave evidence, HHJ Dean QC had described such a step between close neighbours as verging ‘on the edge of rationality’. 

“While it is often true that a person can do what he wants on his own land, it is not always so. The law expects neighbours to show some give and take towards each other. The parties to this litigation should keep that point in mind for the future and now draw a line under the past. Parties to other boundary disputes and their advisers should also, at all times, have this point firmly at the forefront of their minds, and seek to resolve their disputes accordingly, and without resort to complex and expensive litigation.” 

Similarly, in Moncrieff v Jamieson 2008 SC (HL) 1, Lord Hope of Craighead (at paragraph [19]) and Lord Neuberger of Abbotsbury (at paragraph [105]) described that case as “unfortunate”. Lord Scott was more direct at paragraph [45] when he said: 

“This case is also a very sad one for it evidences a regrettable and surely unnecessary falling out between neighbours who had lived as neighbours in apparent amity for very many years, sorting out questions of mutual concern regarding the respondents’ access to their property, Da Store, by sensible arrangements without recourse to the law. The problems that have led to the falling out, to the commencement and conduct of expensive litigation and to their presence now before your Lordships as litigants relate to the right of way over the appellants’ land to which the respondents are entitled in order to obtain access to Da Store from the Sandsound public road. The respondents’ right of way, the existence of which has never been in dispute, has, over the years since 1973 when the right was first granted, required arrangements to be settled regarding the manner of its exercise. These are matters that neighbours, having due regard for one another’s reasonable requirements and interests, ought to be able to sort out for themselves. But if, for whatever reason, they cannot or do not do so, the law must do so for them and, where the exercise of servitudes, or easements, is in question, will do so by reference to those reasonable requirements and interests.”

Lord Roger of Earlsferry was having none of it. 

He said (at paragraph [66]): 

“Your Lordships have variously described it as an ‘unfortunate case’, as a ‘sad one’ and as an ‘unfortunate matter’. The parties are, however, adults and the dispute between them is genuine. Since the point at issue is difficult, it is not surprising that they have been unable to resolve it for themselves. In these circumstances they have simply chosen to exercise their right to have it resolved by the courts. Those on one side have decided to spend their own money on doing so; the Legal Aid Board has financed the other side. As a judge, I would not describe the resulting situation as sad or unfortunate: after all, courts exist and judges are paid to resolve such disputes, which are indeed the life blood of the common law.” 

The reality is that there is no single set of rules which constitute “the law of parking” in either England or Scotland, let alone the whole of Great Britain. Rather, what there is instead is a patchwork of common law principles, legislative interventions and industry practice including voluntary codes, the applicability of all of which depends not only upon territorial jurisdiction but also subject-matter context.  

It is my modest purpose in A Practical Guide to the Law of Parking in Great Britain to give some measure of guidance to practitioners and would-be litigants in both Scotland and England & Wales which might, perhaps, lead to the resolution of their disputes without resort to the sort of complex and expensive litigation on which Lord Roger looks with such equanimity. 

This article was first published at tanfieldchambers.co.uk.

A Practical Guide to the Law of Parking in Great Britain can be purchased here or on Amazon.