[2025] EWHC 2899 (Ch)

The third question of construction which is the subject matter of the Appeal is whether the Judge was right to find that the right of way in clause 2.2 extended to the Pink/Green Land on which the Seller granted a separate right to park in clause 2.1. The Judge rejected Mr Horne’s argument that the right of way in clause 2.2 only permitted the Buyer to have access to the Pink/Green Land for the purposes of parking: see [82] to [92]. I agree entirely with his reasoning. Put simply, the Seller granted two separate rights in clause 2.1 and clause 2.2 over the same land and they were both intended to be enjoyed by the Buyer (and its successors in title). Mr Horne’s argument was that one right should be used to exclude or limit the other. But, as Mr Blaker submitted (and the Judge accepted) the land edged in pink would not also have been coloured green if the parties had intended the Buyer to have a right of parking over it only.

Mr Horne also prayed in aid the “ouster” principle, namely, that an easement of parking must not be “so excessive as to exclude the servient owner and leave him without any use of the area in question for parking or anything else”: see Gale at 9—121. In Moncrieff v Jamieson[2007] UKHL 42, [2007] 1 WLR 2620 (a Scottish appeal) both Lord Scott and Lord Neuberger doubted the existence of such a principle, at least in relation to the grant of an express right: see [59] and [139] to [140]. The editors of Gale express the view that the decision has not conclusively determined the issue but that the reasoning of Lord Scott and Lord Neuberger is “so obviously sensible and the result so practicable that it is suggested that courts are unlikely in the future to allow the “ouster principle” to prevent an exclusive parking right being regarded as an easement, at least where it is intended to be”: see 9—127.

I did not hear full argument on this issue and it would not be appropriate for me to express a view on this issue myself because the Judge did not accept that the Seller was excluded from occupation or possession of the Pink/Green Land: see [91]. I also bear in mind that there was no Respondent’s Notice in which Mr Blaker sought to uphold the decision on other grounds. However, the question whether the effect of the grant of both rights effectively ousted the Seller from possession of the relevant land was one for the Judge and he had the benefit if a site visit to assess this issue. Moreover, this was the issue on which a site visit would have particularly useful since this the relevant land did not form part of the development of Lambert House.

Furthermore, in deciding this issue the Judge was not required to assume that the Buyer and its successors in title would effectively exercise the right in clause 2.2 and prevent all other use of the Pink/Green Land to park a car or light vehicle on the Green/Pink Land for 24 hours a day and 365 days a year. In Moncrieff v Jamieson (above) Lord Hope addressed a similar argument made by the servient owner at [37] to [40]:

“37.

It was suggested in the course of the hearing before your Lordships that a decision that there was an accessory right to park vehicles on the servient tenement could mean that very large numbers of vehicles belonging to all manner of people would be parked there, perhaps for long periods, resulting in an unacceptable burden on the servient tenement. There are however three reasons for discounting such an abuse of the right as a realistic possibility.

38.

The first reason is that the right of access over the servient tenement is granted in favour only of the owner of the dominant tenement and her successors in title, not in favour of the public generally. Of course, as Lord Clyde said in Hogg v Campbell, 2 April 1993, unreported (1993 GWD 27–1712) in a passage quoted by Cusine & Paisley, Servitudes and Rights of Way , para 1.60, the proposition that the dominant proprietors are the only person interested cannot be taken too strictly. The right extends to the proprietors' guests, visitors, employees and others who come there for the purposes to which the land is being put. But, as he also pointed out, that use must be within the intended scope of the servitude and it must not impose an undue burden on the servient tenement. The servitude right of pasturage provides a useful analogy for the determination of the extent of the servitude. As Lord Grieve explained in Ferguson v Tennant 1978 SC (HL) 19, 25, the number of cattle that may be put on the lands of the servient tenement must not exceed that which is “proper to the dominant”-that, is, that the number that the proprietor of the dominant tenement can support from his own resources.

39.

The second reason for discounting the possibility of abuse is to be found in the principle that, in Bankton's words, the servitude right must not be used “invidiously to the other's detriment”: An Institute of the Laws of Scotland, II, vii, 18. As Lord Marnoch said in the Extra Division, para 24, questions of how and precisely where the right to park is to be exercised are questions that ought to be capable of being resolved by the parties acting sensibly but can, if necessary, be decided under reference to the rule that the servitude right must be used civiliter. This point has been recognised by the terms of the declarator, which refers to the right to park “such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement”. The right is not to store or warehouse vehicles on the servient tenement. It is a right which is ancillary to the right of access to the dominant tenement. It is available only for the parking of vehicles which are intended to be used in the exercise of that right. I would not limit the phrase to the determination of where the right of parking may be exercised, although it is of course relevant to that issue. It covers all questions that may arise as to how the right to park may be exercised, including the number of vehicles that may be parked on the servient tenement.

40.

The third reason is that it has not been suggested that an abuse of the kind suggested occurred at any time between 1984 when the first pursuer first began to use the right of access to Da Store by means of vehicles and 1998 when the defenders first disputed the right to park vehicles on the servient tenement. The dispute arose not out of the presence of an excessive number of parked vehicles on the servient tenement. It arose because the first defender wanted to reclaim the pink area as part of the ground for his garden. The experience of all these years indicates that it is reasonable to assume that in practice a decision that there is an ancillary right to park vehicles will not create an undue burden on the servient tenement. So I do not think that it is necessary for the court, at least at this stage, to set a precise limit on the number of vehicles that may be parked there.”

In the present case, there was no evidence before the Judge that the Respondent had exercised the rights in clause 2.1 and 2.2 excessively or that it had prevented any meaningful use of the Pink/Green Land. It is also clear from the 2016 Transfer itself that the parties themselves did not anticipate that the Seller would be unable to make any sensible use of the Pink/Green Land. This is because clause 4.1 imposed a covenant upon the Buyer not to block that area of land other than when exercising the right to park. They therefore contemplated that the Seller would be able to enjoy user of the Pink/Green Land when the Buyer was not using it for parking one car or a small van. The Judge considered this to be decisive: see [91].

I agree. In my judgment, the Judge was entitled to assume that the parties intended the Buyer to make use of the right in clause 2.1 to the extent that was necessary for the reasonable and comfortable enjoyment of the dominant land and that any conflict between the rights in clauses 2.1 and 2.2 and the obligation in clause 4.1 “ought to be capable of being resolved by the parties acting sensibly”: see Moncrieff v Jamieson (above)at [39]. But he was also entitled to assume that if the Buyer abused the right to park and prevented any use by the Seller, then the Seller would have been entitled to enforce the covenant in clause 4.1.

Finally, there was some discussion between counsel about the size of the Pink/Green Land and the other uses to which it could be put. Mr Blaker accepted that it was bigger than a single parking space but not a big enough space upon which to park two cars (or light vans). However, the parties plainly contemplated that the Seller might use some of it as amenity land for landscaping: see clause 2.1 itself. But even if the Seller chose not to use it for that purpose, she and her successors in title could always use it to cut the corner of Back York Place and the Alley. This was (and is) a very tight corner as is clear from the photographs. As the Judge observed, the planting appeared to have been removed from Plan 2 and he heard no evidence that there was any physical barrier to driving across the corner at the date of the grant: see [90] and footnote 7. There was no challenge to these findings and I am satisfied that the Judge was entitled to find on the facts that the “ouster” principle had no application. I, therefore, dismiss Ground 3(iii).

Ground 3(iv)

Mr Horne accepted that the Judge was only wrong in law to dismiss the Appellant’s claim for damages and to have found its claim made out if he succeeded on Ground 1(i) and persuaded the Court that the Respondent was jointly liable and that the Judge was wrong to construe the 2016 Transfer in the way in which he did. Since I have dismissed Ground 1(i) and Grounds 3(i) to (iii) I also dismiss Ground 3(iv).