Dymond v Coombes

Where a right of way gives the dominant owner access to land, it includes the practical right to manoeuvre vehicles into and out of that land. The servient owner may park on the way only so far as the parking does not substantially interfere with that right. A court may define a clear exclusion area where this is needed to make the right effective and prevent recurring disputes. It need not leave the parties to litigate whether each instance of parking amounts to substantial interference. The restriction may be upheld despite detriment to the servient owner where it is justified by the physical constraints of the site and reasonable alternative parking is available.

This was an appeal by the owners of Hillsborough House from part of an order made by Mr Recorder Brock QC in the Barnstaple County Court on 23 March 2001. The dispute concerned parking on a drive over which the cottage owner had rights of way and manoeuvring. The order permitted the appellants to park on the drive provided that they did not substantially interfere with those rights, but prohibited parking on specified land and within five metres of it. The appellants argued that the five-metre restriction had not been sought or addressed in evidence and was unjustified. The central issue was whether the restriction should stand.

Disposition

The Court of Appeal, in a unanimous judgment delivered by Lord Justice Tuckey and agreed to by Lord Justice Mummery, dismissed the appeal with costs.

1. The appellants’ complaint that the restriction was procedurally unfair did not require further consideration. The court admitted additional evidence on the basis that it would determine whether the restriction was justified.
2. The respondent’s right of way included access to her own land and the reasonable use of the drive to manoeuvre and turn vehicles at its western end. She could stop for picking up and setting down passengers and for loading and unloading, but had no right to park on the drive.
3. The appellants, as servient owners, could park on the drive only so far as sufficient space remained for the respondent, her guests and visitors to pass and use the right of way. Parking on the forecourt could effectively prevent access to the Covenant Land and therefore substantially interfere with the right.
4. The five-metre restriction was a sensible definition and exposition of the respondent’s existing rights. A fixed exclusion zone gave practical effect to the right to manoeuvre and avoided further litigation about whether particular parking amounted to substantial interference.
5. The restriction was not unjustified or unreasonable. Although it caused detriment to the appellants, the raised triangular area could provide adequate alternative parking, and the restriction was proportionate to the physical constraints and the need to preserve access.

The appeal was dismissed with costs. A detailed Legal Aid assessment of the appellants’ costs was ordered.

• Court of Appeal (Civil Division): On 1 November 2001, the appeal was dismissed with costs. The court upheld the five-metre no-parking restriction.
• Barnstaple County Court: On 23 March 2001, Mr Recorder Brock QC declared that the appellants could park on the drive only without substantially interfering with the respondent’s rights, and prohibited parking within five metres of the Dymond Land and Covenant Land.