English Court of Appeal considers Moncrieff v Jamieson for the first time

4 April 2009

The English Court of Appeal has considered the implications of Moncrieff v Jamieson for the first time in a case concerning whether more than two cars could be parked on an area of land. 

The case is Waterman v Boyle (27 February 2009) as reported on in the The Times on 30 March 2009 and Scots Law News on 3 April 2009.  It was held that an express right to park two vehicles at a property did not imply a further right to park additional vehicles.

The Watermans lived in a property originally owned by Mr Boyle and Ms Gwilt (the defendants). When the defendants sold the property, the conveyance provided for parking at the Watermans’ property of two private vehicles on designated land over which both the Watermans and defendants had a common right of access.  The issue which arose was whether other cars could be driven along and parked there by the Watermans’ visitors.

Lady Justice Arden said:-

"One of the issues with which I shall deal is whether in this case the right to park is to be implied from a right of vehicular access. That issue was the subject of the recent decision of the House of Lords in Moncrieff v Jameson [2007] 1 WLR 2620, relied on by the judge. Although Moncrieff was a Scottish appeal, Lord Scott and Lord Neuberger held that there was no material difference between English and Scots law on implication of a right to park. This is the first occasion on which this court has had to consider Moncrieff. "

The test to be applied is whether, having regard to the circumstances at the time of the transfer ... it would be a reasonable use, in the sense of a reasonably necessary use, of the green land to use it for stationing vehicles for the duration of the user's visit to the property ... It is not enough that the use is merely desirable ...

The circumstances at the time of the transfer include the provisions in the transfer itself ... The parties to the transfer had thus specifically considered parking rights and made what appears to be adequate provision for parking. The right of way to 2, Hog Lane Farm could be substantially enjoyed without any further parking right.

In my judgment, if the parties had intended any further right of parking there would have been an indication to that effect in the transfer. Nothing in the surrounding circumstances at the time of the transfer supports the implication of any further right. I would indeed go further and hold that, where there is an express right attaching to the same property of a similar character to the right which is sought to be implied, it is most unlikely that the further right will arise by implication. The circumstances would have to be quite exceptional.

...I accept that there will sometimes be visitors with more cars than available parking spaces, but there is nothing to stop the Watermans asking Mr Boyle and Ms Gwilt for permission for their guests to park. Moreover, it would have been obvious to them when they bought the property that there were no rights for visitors to park on the appellants' land"

The Judge at first instance had therefore wrongly applied Moncrieff v Jamieson and an express right to park two vehicles at a property did not imply a further right to park additional vehicles.

Lord Justice Waller and Lord Justice Moore-Bick agreed.

Read the full report of the judgment in Waterman v Boyle [2009] EWCA (Civ) 115 at Bailii.

For advice on servitude rights or parking law contact Brian Inkster on 0141 229 0880 or send Brian an e-mail.