Q&A: Parking privileges

Question

I have parked for many years on a private road to the rear of my home but there are no rights to do so registered on my title. I have recently been challenged by the owner of a local business who uses the road to pick up and collect from the rear of their premises. Can I continue to park on the road?

Answer

If you have parked on the road for a sufficient period of time you are likely to have acquired rights to do so. However, those rights must be balanced alongside the rights of others, including the local business, such that you shouldn’t park so as to prevent loading and unloading from the rear of their premises.

Explanation

These facts are similar to a recent case which went as follows. In Stamford, there is an old coaching inn, described by Daniel Defoe as “one of the greatest in England”. To the rear is a cul-de-sac called Church Court. Tracey Cousins lives nearby and is accustomed to parking there. But her parking blocked the entrance to the hotel’s laundry and a dispute arose, which was resolved (so far) in a decision of Morgan J last year – Poste Hotels v Cousins [2020] EWHC 582 (Ch); [2020] PLSCS 50.

The key point in the judgment is that it was entirely possible for Church Court to be subject to competing rights owned by different landowners, but this did not mean the exercise of one right should interfere with the exercise of another right.

The hotel sued Cousins, claiming that she was interfering with its right of way over Church Court. Cousins counterclaimed a declaration that she had a right to park on Church Court. Somewhat unusually, neither party was the owner of the land over which the rights were claimed. It therefore meant that neither party could prevent the other from exercising their claimed rights.

Cousins habitually parked her car in front of the doors to the laundry of the hotel in order to gain access to her home from the rear. The principal questions for the court were whether she had an easement of parking and whether she was entitled to interfere with the hotel’s right of way over the same land.

The hotel made two arguments about whether Cousins had a right to park. The first was that a right to park had not been established. The second was that even if she had established a right to park, then this did not extend to parking in front of the doors to the laundry as this would interfere with the hotel’s right to gain access to the laundry.

The hotel argued that the owner of the cul-de-sac could not have granted Cousins a right to park there because that would have extinguished its right of way. The hotel also argued that Cousins had been parking on the cul-de-sac simply as a member of the public and therefore could not have acquired an easement.

In answer to this, Cousins relied on the notional grant of a right to park arising by prescription. She also contended that she was entitled to exercise this right by interfering with the hotel’s right of way because this reflected the manner in which she had used the cul-de-sac, which was the basis for her claim in prescription. She said the hotel had acquiesced in her use and was now estopped from complaining about it.

There were two questions for the court to consider – whether there is a lawful origin for the user and whether that lawful origin is reasonably possible. Church Court was not a public highway. It therefore followed that even though members of the public parked there, Cousins’ parking could not be lawful by reference to her status as a member of the public. There was an artificiality in trying to distinguish between her actions by saying that parking and locking her car were the acts of a member of the public but, on the other hand, passing and repassing to her property were the actions of a private landowner.

Instead, the court considered that a lawful origin for the right to park that was reasonably possible was a notional grant of an easement appurtenant to Cousins’ property and, on this basis, concluded that Cousins had an easement to park. Interestingly, she claimed not just a right to park but a right to compete for parking and the judge appeared to accept that this right could be an easement, thereby extending the category of rights that the law recognises as an easement.

Having concluded that Cousins had a right to park on the cul-de-sac, the court then also concluded that she did not have any right to interfere with the hotel’s right of way to the doors to the laundry when exercising that right to park, thereby balancing the competing rights between the parties.

Permission to appeal has been sought, so it is a question of “watch this (parking) space” for the time being.

This article was first published in Estates Gazette on 12 January 2021 and written by James Souter in the real estate disputes team at Charles Russell Speechlys LLP and David Nicholls at Landmark Chambers.