Howard John Kettel and Others v Bloomfold Ltd
| Jurisdiction | England & Wales |
| Judge | HHJ David Cooke |
| Judgment Date | 25 May 2012 |
| Neutral Citation | [2012] EWHC 1422 (Ch) |
| Docket Number | Case No: HC10C02288 |
| Court | Chancery Division |
| Date | 25 May 2012 |
[2012] EWHC 1422 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
The Rolls Building,
London, WC4A 1NL
HHJ David Cooke
Case No: HC10C02288
Simon Edwards (instructed by Fairweather Stephenson & Co) for the Claimant
Martin Hutchings QC (instructed by Prettys) for the Defendant
Hearing dates: 13–15 March 2012
The claimants in this case are the holders of long leaseholds of eight flats in a development originally constructed in the 1990s in the East End of London, known as City Walk (also referred to as Fuller Close). The defendant is the freehold owner of the development. Each of the flats has the benefit of the use of a designated parking space, although the nature of their entitlement to those spaces is one of the issues in dispute. The claimants seek an injunction to prevent the defendant building a further block of flats on the site which would cover their parking spaces. The defendant contends that it has the right to require the claimants to use other car spaces in place of those originally allocated to them in order that it can proceed with the development as it wishes. Alternatively, it submits that in view of the offer of alternative spaces, which it maintains would be equally convenient for the defendants, any remedy to which the claimants are entitled to be limited to nominal damages and not an injunction.
The layout of the development can be seen on the plan at page 12 in the bundle. In general terms, it is a rectangular site bounded on the north by Bacon Street and on the south by Cheshire Street. The original development was completed in two phases; phase 1 consisting of the flats and four commercial units on the western half of the site and phase 2 comprising further flats and commercial units on the eastern half. The result was that the site was almost fully enclosed around its perimeter by flats and commercial units, but there was a gap along the northern edge. This gap and the centre of the site are taken up by roadway, car parking spaces and open space planted with trees and shrubs. The new building is proposed to be constructed in the gap, taking up 10 car parking spaces including the eight used by the claimants, and an area which is presently roadway. The other two car parking spaces are used by the defendant itself and by its director and sole shareholder Mr Hardy.
There is no significant dispute between the parties on the facts, so that although I have witness statements from six of the claimants it was agreed that their evidence could be taken as read. I heard evidence from two lay witnesses on behalf of the defendant, its managing director Mr Hardy and Mrs Lesley Balding, an employee of London Link Properties Ltd which is the agent managing the property for the defendant. The parties called evidence from valuation experts, Mr Shaw on behalf of the claimants and Mr Collier for the defendant. Their reports are in the bundle and they also gave oral evidence.
The defendant obtained planning permission for its proposed new building on 12 September 2006. It consists of a single building of three stories, containing eight flats. It is a condition of the planning permission that the occupiers of the new flats will not be provided with car parking on the site, so that although it would be necessary to find alternative spaces for the claimants, which may involve land which is presently open space or roadway, the total number of car parking spaces on the site will not increase.
The defendant took the view from the start that it was entitled to require the claimants to accept alternative car parking spaces. On 13 October 2008 its agent wrote to the claimants (an example is at page 148) referring to the planning permission and saying "in line with legal advice already received by our client, the car park space you have been allocated to date falls within the demised area of the new block and your right to park will be transferred to one of the other vacant spaces within the development. Vacant parking spaces will be re-allocated on a first-come first-served basis so if you have a preference on location then please contact me and I will discuss the choices available."
None of the claimants had however agreed to accept a new space when on 1 September 2009, apparently without warning, contractors acting on behalf of the defendant entered on the site and fenced off the area on which the new building was to be constructed, including the claimants' car park spaces. At least one resident's car was fenced in during this process, although he was allowed to remove it when he wished. Later on that day, further letters were sent by London Link Properties to the claimants in the form of the example at page 208 addressed to Mr Kettel, which simply said "Please accept this letter as notice of reallocation of your parking space to number 28a, which is indicated in red on the attached plan."
Since then, the defendant has sought to agree with the claimants that they will accept alternative car parking spaces. Certain of the claimants initially indicated that they would be prepared to do so, and were sent draft documentation intended to vary their leases accordingly. Ultimately, however, they withdrew their agreement without having executed any such variation, and it is not suggested that they have entered into any binding agreement. One other leaseholder did however do so. Faced with the lack of consent from the claimants, the defendant has not proceeded further with the development, so that the area in question remains fenced off but no construction work has begun on the new block.
This claim was issued in October 2010. The claimants did not seek any interlocutory injunction, both parties being apparently content to await the outcome of the claim if they were not able to agree a negotiated settlement. Although the timetable of the litigation has been extended in order to enable the parties to discuss such a settlement, none has been agreed and accordingly the matter was ultimately set down for trial.
Demise or easement?
The first issue is whether the claimants' entitlement to use the car parking spaces amounts to a demise, as Mr Edwards submitted or is merely an easement. Mr Hutchings canvassed the possibility that it might as a matter of law be a contractual right less than an easement, but his case was put on the basis of an easement and Mr Edwards also accepted that if I was against him on his primary case the right was an easement. The claimants' position is that this issue makes no difference to the question whether the defendant is entitled to require them to accept alternative spaces, or to remedy, but that a demise would carry with it the entitlement to prevent encroachment on the air space above the parking spaces themselves. This is potentially relevant to an alternative scheme canvassed but not so far implemented by the defendants, the so-called "crash deck" scheme, which would involve a building extending over the car spaces but open at ground floor level so that they could still be used. Mr Hutchings takes the opposite position in both respects.
Mr Edwards' submission was that the right granted to use each space amounted to exclusive possession of it, and so a demise rather than an easement appurtenant to the demise of the flat itself. Alternatively, he said, it was a right which was so extensive that it deprived the freeholder of any reasonable use of the land for any other purpose and so was not capable of subsisting as an easement (and by implication must be a demise) relying on the decision of the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764. That case involved a claim to a right by prescription to park vehicles for 9 1/2 hours per working day on land adjacent to an unmade road. Tuckey LJ, with whom the other members of the court agreed, said this:
"[8] [The deputy judge] referred to the authorities and accepted that the question he had to answer was one of degree. This followed the approach adopted by Judge Paul Baker QC in London and Blenheim Estates v Ladbroke Retail Parks Ltd [1993] 1 All ER 307 at 317, [1992] 1 WLR 1278 at 1288 who, after reviewing the earlier authorities on car parking, said:
'The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land whether for parking or anything else, it could not be an easement, though it might be some larger or different grant.'
[9] It was common ground before us that that was the essential question in this case and that there was no authority which provided the answer to it…
[18] If one asks the simple question: 'Would the appellant have any reasonable use of the land for parking?' the answer, I think, must be 'No'. He has no use at all during the whole of the time that parking space is likely to be needed. But if one asks the question whether the appellant has any reasonable use of the land for any other purpose, the answer is even clearer. His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory."
It is likewise common ground before me that the question is one of fact and degree. Both counsel accept that a right to park is in principle capable of subsisting as an easement, depending on its terms. In Moncrieff and another v Jamieson and others [2007] UKHL 42 the House of Lords so held in relation to the law of servitudes in Scotland. Lord Scott (who expressed the view at para 45 of his judgment that there was no difference between the English and Scottish law on this point) said:
"[59] In my respectful opinion the test formulated in the ...
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