[2025] EWHC 2899 (Ch)

For these reasons I dismiss the Appeal. I invite the parties to agree a form of order and to submit it to the Court. If there is any dispute about the terms of the Order I will decide any outstanding issues on paper. If the parties are unable to agree a form of order or file brief submissions before the date and time fixed for the hand down of this judgment, I invite them to agree directions for the resolution of any outstanding issues and submit to the Court.

When I circulated this judgment in draft, Mr Horne submitted that I had not considered his argument based on the decision in Waterman v Boyle [2009] EWCA Civ 115 as set out in paragraph 28 of his Skeleton Argument:

“In the Court of Appeal authority of Waterman v Boyle [2009] EWCA Civ iv 115, the Court of Appeal held that it was not right to imply a right to park as ancillary to a right of way, not least where the grant of the right of way also included a more limited express right to park. Further, the Court of Appeal described the facts of the Scots Law case of Moncrieff v Jamieson [2007] 1 WLR 462, where an implied right to park was held to exist as “quite exceptional”. The Court of course note the express right to park granted by clause 2.1 of the 2016 Transfer and also the fact that there was ample parking within the grounds of the dominant tenement as referred to in paragraph 27 above.”

I have considered Waterman v Boyle and I do not consider that it has a material bearing on Ground 3(i) or my decision in [63] to [66] (above). Both Moncrieff v Jamieson and Waterman v Boyle are concerned with implied easements of parking and not with the question whether, as a matter of construction a right to pass and repass (as opposed to use) a way for all purposes includes the right to stop or stop for the purpose of loading and unloading.

Mr Horne relied on Waterman v Boyle at [31] to [34] where Arden LJ stated that the circumstances in which the Court will imply an easement of parking into the grant of a general right of way would have to be quite exceptional. I have no doubt that this is correct. But Arden LJ was not suggesting that it would be exceptional for a right of way for all purposes to include a right to stop or to load and unload and cited Bulstrode v Lambert with approval: see [29]. She also stated that the owners of the servient tenement permitted loading and unloading but challenged the right to park: see [6]. I did not refer to Waterman v Boyle because it seemed to be of limited value in the present case and clause 2.2 is clear. For these reasons, therefore, I decline to recall my decision to dismiss Ground 3(i).