Issues

What rights exist between the two properties? Will a right to park be implied from a right to vehicular access? Could the garage access rights apply to areas of land over and above the servient tenement? Is building a wall close to the Lane interfering with the Clients garage access rights?

Law and Application

What rights exist between the two properties? Rights that exist between two pieces of land are regarded as easements if they comply with the four rules established by the case of Re Ellenborough Park [1956] Ch. 131: a) there must be a dominant and a servient tenement; b) dominant and servient owners must be different persons; c) the easement must accommodate the dominant tenement; and d) the right claimed must be capable of forming the subject-matter of a grant. All 4 limbs of the Re Ellenborough Park test are satisfied in this scenario. The easements of access and parking arise. This indicates that the Clients possess an easement to both the north entrance drive to access their property and the Lane to access their garage. The Clients also possesses a right to a designated area to park two private cars. Does a right to vehicular access imply a right to park? It is deemed a matter of construction as to whether a right of way constitutes a right to park. The Scottish case of Moncrieff v Jamieson [2007] UKHL 42 indicates that when a right of vehicular access is granted in an easement, an accessory right to park is capable of being created. This depends on whether such a right is necessary for the comfortable use and enjoyment of the easement. This case can be considered exceptional as the dimensions of the property made it reasonably necessary to use the right of access for parking vehicles. Waterman v Boyle [2009] EWCA Civ 115 This case is much closer to the facts at hand. Lady Justice Arden points out in this case that the dominant property had, as an easement, space for two private motor vehicles and space to park four other vehicles in the rear of the property. This made for what appears to be adequate provision for parking. With this, it was decided that the right of way to the property could be substantially enjoyed without any further parking rights. It was suggested that, should any additional requirements to park arise, that the claimants simply seek permission from the servient tenement owner. Lastly as the easement was expressly limited to private vehicles, it is impossible to imply a right to park commercial vehicles in the designated areas in any event. Could the garage access rights apply to areas of land over and above the servient tenement? Waterman v Boyle [2009] once again has similarities to this aspect of the Clients complaint. The easement to access the garage conferred a right to use an access

lane of a fixed location. It would be unreasonable to interpret this right in accordance with ease of access. The matter that may arise of different types or sizes of vehicles wishing to access the garage and the lane being too small is irrelevant. A right of access should not be interpreted purposively. This means that although the Clients have access to the garage via the Lane, any issues which, may arise, due to the size of the Lane is not the fault of the servient tenement owner Mr Robinson. Is building a wall close to the Lane interfering with the Clients garage access rights? In Waterman v Boyle [2009] the claimants claimed that a proposed wall would interfere with their rights to access their garage. Lady Justice Arden acknowledged that a wall may create difficulty in accessing the garage. However, as the wall is built on the servient tenement, for it to constitute a nuisance it would have to be a substantial interference with the right of access and it must interfere with the reasonable use of the right. Such examples of a nuisance would be a loud noise prohibiting a farmer with the right to cattle access taking cattle down the lane. Such circumstances would have to be equally exceptional in this case, and the proposed wall did not pass that threshold. Applied to the facts, Mr Robinson building a wall on his property is deemed ordinary use as per Lady Justice Ardens judgement. Although it may make the use of the easement more difficult for the Clients, ,as it does not substantially interfere with the Clients easement of right of access, the erection of the wall is not actionable.

Advice
Parking Under the rights granted to them, the Clients have what appear to be sufficient parking facilities available to them. Unlike Moncrieff v Jamieson [2007] where the nearest parking was up a steep hill and a150 yards away, the Clients will be unlikely to succeed in their claim that the right to such parking can be implied as a necessity. This means that should they ever wish to use the north entrance drive for visitor parking, the Clients should seek permission from Mr Robinson. The Garage and the Wall As Mr Robinson has built the wall on his own land and it does not appear to be passing the threshold of creating a nuisance, the Clients have little option but to accept the difficulties that the wall creates. In Waterman v Boyle [2009] the judge suggested that such difficulties might be alleviated by reconfiguring the dimensions of the garage and that insistence on a right of access without altering the configuration of the garage was not reasonable. Lastly, Lady Justice Arden makes a point to say that parties to such boundary disputes should at all times seek to resolve their disputes between one another without having to resort to complex and expensive litigation. I hope that this is helpful. Please let me know if you need anything further. [Trainee]

Sources

Cases as Cited Halsburys Laws Lexislibrary Textbook on Land Law (12th Edition) Judith Anne MacKenzie & Mary Phillips Westlaw Word Count [1500]