This
case concerns with the servitude rights under Scottish law. Servitude is right
on another property similar to easements. However, Lord Neuberger stated in his
judgment, though common law of servitudes in Scotland and common law of
easements in England and Wales are not similar in every aspect but they are
almost same.[1] So, the cases, used in this case, are from
both jurisdictions.
The
importance of the case lies on changing the existing law of servitude in
Scotland. This has been a grey area of law for many years. It was assumed that
the common law do not recognise the servitude right of parking in Scotland and
the courts are not going to increase the class of servitude unless the
Parliament decides otherwise. However, the House of Lords in this case has
changed this old presumption. Their Lords unanimously decided that a right of
parking as servitude can exist under the law of Scotland.
The
main point of the case can be defined in just a sentence of Lord Scott, ‘there
can be an ancillary right of parking if it is reasonably necessary for the
comfortable use and enjoyment of servitude’[2].
The case involves a dispute between two adjacent property owners. The pursuers’
property or dominant tenement is situated at the bottom of a steep slope by the
sea. Vehicles cannot be driven onto the property and the only way to access the
property is by driving across the defendants’ land from a public road; then
walking down by a foot steep escarpment from a gate in defendants’ property or
servient tenement. In 1973, the defendant allowed an express grant of access to
the pursuers. The grant of access to the dominant property was silent about the
route by which it should be exercised. However, it does not pose substantial
problem as the dominant proprietor may choose the route over which the
servitude is exercisable in any place most commodious for him, but not undue
burden for others.[3]
In the present case it can be assumed that the parties intended to use the road
which runs up to the gate and still clearly visible and available to be used
and for the last 20 years the pursuers accessed and parked their vehicles on
defendants’ property without any complain until the dispute arose in 1998 about
the right of parking vehicles. The defendants argued servitude right of parking
is not recognised in Scots law.
Parking as Servitude
Though
it is not necessary to decide in the present case whether or not a right of
parking can exist as servitude under Scots law but this issue cannot be avoided.
If there have to be an ancillary right of parking for servitude right of
access, the right of parking vehicles has itself to be recognised by law as an
independent servitude. It should not be presumed that servitudes are restricted
only to certain known types.
New
servitude may arise with the alterations in the progressive society.[4]
But it cannot be concluded that Scots law recognises a servitude right of
parking independent of any right of access[5]
because parking is likely to prevent the sevient owner from using certain part
of his land.
According
to old law, if a claim for an
easement on particular land amounts to virtual possession of the land, if
necessary may exclude the owner, then the claim should fail.[6] The
right appears for exclusive use of servient land; so incapable of being an
easement in law as it is extensive and could not be in the contemplation of the
parties that such right would be necessary in future.[7]In
such a case the dominant proprietor will have unrestricted use of the land and
would leave the servient owner without any reasonable use of his land[8]which
will literally amount to adverse possession. This principle was later invoked
in Batchelor v Marlow[9]the
right to park for such a period prevents the owner of the land from making a
reasonable use of it and makes his ownership illusory. Since, it ousts the
servient owner from his property it falls foul of ‘ouster principle’ and
incapable of being servitude.
Now
all kind of easement interferes, at least to some extent, with the enjoyment of
the owner. To prevent an easement from falling foul of ouster principle, what
degree of use or enjoyment should be left for the owner is the main question
here. According to their Lordships there is no fundamental objection to a right
being recognised as servitude even if it prevents the servient owner from using
part of his property. The ouster principle should rarely have any effect, it
should only come into effect where the claimant is claiming unrestricted right
to use; courts should not be too ready, at least in parking claims, to find the
owner’s use of land has rendered illusory.[10]
According
to Lord Scott, the test to decide whether there can be any servitude right is:
whether “the purported servitude right is going to put the dominant owner is
such occupation of servient land as to bar the servient owner from possession
or control of the land”[11]. This
indicates if a land can accommodate nine cars there can be servitude of parking
up to eight cars.
In
2008, the law commission proposed: a right can be servitude where it is clear
and does not involve unrestricted use of servient land. The proposal resembles
the principle in Batchelor case than
this one. Later, in William Old
International Ltd v Arva[12]and
Virdi v Chan[13]court held that right under easement must be exercised
reasonably and without any undue interference with the servient owner’s
enjoyment of his own land.
Ancillary right of parking:
Their
Lordships opinions were different in this point. According to Lord Hope, the right
of parking as an ancillary of other servitudes can easily be accommodated
within established principles. When there is an express grant of an easement
there is also grant for such ancillary rights as reasonably necessary to its
exercise and enjoyment.[14] It
will be sufficient if it can be shown that the right was in the contemplation
of the servitude proprietor.[15]
He said the test for ancillary right should be whether or not it is necessary
for comfortable use and enjoyment of servitude. He thinks the words “necessary”
and “comfortable” strikes proper balance between the interests of the servient
and dominant proprietors. The servitude right must be construed in a way so
that it does not put an undue burden on the servient proprietor but it should
not be construed so strictly as to defeat the right granted to the dominant
proprietor. Lord Scott emphasised that it should be “reasonably necessary” for
the use and enjoyment of access. When it should be on the basis of the
surrounding circumstances, it also should be considered what is normal and
reasonable in one set of circumstance may not be reasonable in another case. In
the particular circumstances of the case it is necessary to have right of
parking on the servient tenement for the reasonably incidental use and enjoyment
of the dominant property.
Lord
Rodger tends to disagree with this test. According to him, an express grant of
servitude may carry with it an implied right on the servient land if the right
is essential to make the servitude effective or carry out the purpose for which
the servitude was granted. This kind of implied rights will put undue burden on
the servient tenement and “civiliter doctrine” is not enough to safeguard the
servient owner against this.
Lord
Neuberger agreed with Lord Hope and Lord Scott but he added an extra
requirement with it. He said there can be an ancillary right if it is
reasonably necessary for the exercise and enjoyment of servitude and dominant
tenement. The main point of having servitude is the reasonable enjoyment of
dominant tenement. He emphasised on using the combination of servitude right
and dominant tenement. He compared the case with contract law cases where you
can imply terms as long as they are necessary and within the contemplation of
parties. But it cannot change the literal meaning of the words that indicates
the intention of the parties.[16] To
specifically decide the degree of ouster is required to resist a right from
being servitude would dangerously compromise with party’s’ intention. So, he
decides, with reasonable doubt, that there cannot be parking right on a
specific space
Although
their Lordships could not agree on a specific test in this point of law but
they all agreed in the unusual circumstances of the case there should be a
servitude right of parking. They based their decision on ancillary right of
parking vehicle on the defendants’ property. The implication of the case is
that it has increased the possibility of other rights to be existed as an
ancillary to servitude if they are necessary for reasonably enjoyment in the particular
circumstances. Though, it is likely to be difficult to prove what is reasonably
necessary for comfortable use unless the circumstances are quite unusual as
Lord Rodger mentioned in his judgment. However it has opened the way for new
types of servitudes to be recognised in law. Now, any right of limited use may
be capable of being created as servitude, but it should not be assumed that any
limited use can be servitude. Their
Lordships have proved again how flexible common law can be where it is required
for the changing circumstances of society.
[1]
See paragraph 108,111 & 136 of the judgment.
[2]
See Paragraph 52.
[3]Lord
Hope
[4]Harvey v Lindsay (1853) 15 D 768
[5]Nationwide Building Society v Walter E Allan
Ltd (unreported)
[6]Copeland v Greenhalf[1952] Ch 488, 498.
[7] Grigsby v Melville [1972] 1 WLR 1355.
[8]London & Blenheim Estates Ltd v Ladbroke
Retail Parks Ltd [1992] 1 WLR 1278.
[9][2003]
1 WLR 764.
[10] A
Hill-Smith, ‘Rights of parking and the ouster principle after Batchelor v
Marlow’ [2007] ConvPL 223, 234.
[11]Lord
Scott in Para 47 and 59.
[12]
[2009] 2 EGLR 141.
[13] [2008] EWHC 2901 (Ch).
[14] Jones v Pritchard [1908] 1 Ch 630,638.
[15]Ewart v Cochrane (1861) 4 Macq 117.
[16]Waterman v Boyle [2009] EWCA (Civ) 115.
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