There are two things in property litigation that seem more likely than not: (1) new proprietary estoppel cases will concern farms, (2) new easement cases will concern parking rights. Poste Hotels Limited v Cousins [2020] EWHC 582 (Ch) is not an exception to that observation.
Poste Hotels Limited concerned a dispute between two neighbouring landowners who both claimed to enjoy easements over a cul-de-sac known as Church Court. The claimant, Poste Hotels Limited, claimed a prescriptive right of way, with or without vehicles, over Church Court to enable it gain access to a part of its property used as a laundry in connection with the hotel on its land. The defendant, Tracey Anne Cousins, claimed the benefit of a prescriptive easement to park in Church Court appurtenant to her residential property, the rear access to which is located in Church Court. The rights claimed conflicted, as Ms Cousins allegedly interfered with the right of way claimed by Poste Hotels Limited by parking in front of the doors to the laundry.
The case came before Morgan J on appeal from HHJ Yelton in the County Court at Cambridge, with his Lordship handing down judgment on 12 March 2020.
Issues on appeal
The issues for determination in the appeal were
- Whether Ms Cousins had a right to park in Church Court;
- If so, whether that right entitles her to park in front of the laundry doors;
- Whether the trial judge was right to adjourn the Claimant’s application for an injunction;
- Whether the appeal court should declare that the Claimant’s employees, agents and visitors had the right to park in Church Court;
- Whether the appeal court should make a different order for costs from the order made by the judge.
This short blog post focuses in the first two issues.
The Defendant’s right to park in Church Court
The trial judge held that Ms Cousins established that her property enjoyed a prescriptive right to park in Church Court. The Claimant appealed that finding and submitted that Ms Cousins had not established any right to park in Church Court and, even if she had, she had not established a right to park in front of the laundry doors as any such right would interfere with the Claimant’s own right to gain access to the laundry from Church Court.
It is notable feature of this case that neither party held the title to the servient tenement. Accordingly, the Claimant conceded that it could not actually prevent Ms Cousins parking in Church Court if that parking did not amount to an interference with the easement it enjoyed. Further, the Claimant conceded that it did not actually object to Ms Cousins parking in Church Court, provided that it could access the laundry.
The Claimant made four subsidiary submissions, which Morgan J rejected (paras 23-27). Those submissions were (1) the owner of Church Court would not have been capable of granting the right claimed by Ms Cousins, that right extinguishing the Claimants right of way, (2) the right claimed was subject to daily interruption and could not be claimed by prescription, (3) Ms Cousins’ parking was not ‘as of right’ because it was subject to the Claimant’s pre-existing right of way and (4) Ms Cousins’ use of Church Court was better characterised as ‘storing’ or ‘abandoning’ her car, and could not be enjoyed pursuant to an easement to park.
The Claimant’s main submission was that Ms Cousins’ parking was not ‘as of right’ as it was not use that was appurtenant to her property, but was instead to be regarded as use by members of the public parking in a local and convenient place (paras 28-57). In support of its submission, the Claimant relied on Le Strange v Pettefar (1939) 161 LT 300, in which it was held that a tenant had enjoyed the facility of parking in his capacity as a member of the public so that the right was not a privilege that could pass under section 62 of the Law of Property Act 1925.
Morgan J rejected that submission. The Claimant conceded that Ms Cousins enjoyed a prescriptive right of way over Church Court. In light of that concession, his Lordship, at paragraph 50, said
…the Claimant’s suggestion involves holding that when the Defendant locks her car and leaves it there for a period of time and walks to [her property], she is no longer asserting a right for the benefit of [her property] but is simply acting as a member of the public would act. The first objection to that is that it is completely unrealistic to distinguish between the Defendant’s actions when passing and repassing and loading and unloading on the one hand and parking on the other. The other objection is that the parking by members of the public is not for a purpose connected with [the Defendant’s property] whereas parking by the Defendant is for that purpose.
Accordingly, Morgan J held that Ms Cousins had established by prescription a general right to park in Church Court appurtenant to her property.
However, there is an interesting aspect to Morgan J’s decision that seems to fly somewhat under the radar. At paragraph 37 his Lordship said
…the Claimant referred to the claimed right as a right to compete for parking, rather than a right to park in a designated space, such a right can exist as an easement.
That statement is not without controversy. Morgan J appears to be extending the category of rights that the law recognises an easement to include a right to compete for parking, as distinct from the right to park per se.
Does the Defendant enjoy the right to park in front of the laundry doors?
The trial judge found, as a matter of fact, that the presumed grant of the Claimant’s right of way occurred in 1951, and the presumed grant of the Defendant’s right to park in Church Court occurred in 1976.
In light of that finding, the Defendant made three submissions (paras 62 to 62): (1) the Defendant had acquired by prescription the right to interfere with the Claimant’s right of way, (2) the Claimant was estopped by acquiescence from complaining about the interference, (3) the Claimant’s objection to the parking was barred by the laches doctrine.
Morgan J rejected these submissions on the facts of the case (paras 65 to 68). His Lordship upheld the finding of the trial judge that Ms Cousins did not have a right to interfere with the Claimant’s right of way by parking in front of the doors to the laundry.
Initial thoughts
It will be interesting to see becomes of the statement in paragraph 37, and whether it will have any wider consequences for the law of easements.
As an initial thought, characterising as proprietary the right to compete for a use that may itself be recognised as an easement does not sit well with dominant property narratives. Competition is not a stranger to property law theory; property rights have long been allocated according to the doctrine of first possession, with those winning the race to a resource enjoying title to it (see, for example, Pierson v Post (1805)). However, the ability to enter the race is not itself characterised as proprietary, yet this seems to be the effect of Morgan J’s statement at paragraph.
Furthermore, arguably the right to compete is of no value, and it is unclear why Ms Cousins would need that right. As a matter of fact, members of the public with no claim to an easement compete for parking spaces in Church Court. The right does not guarantee her a space, just the right to compete for one, which is seemingly a right enjoyed by all others. It is not clear what the proprietary status of her right enables her to enjoy that others cannot.
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