Saeed v Plustrade Ltd

A lessor who has granted a right to park cannot treat a power to specify parking areas as a power to extinguish that right at will. The rule against derogation from grant applies whether the right is characterised as an easement or as contractual. An interference is actionable where it is unjustified and substantial. Substantiality is assessed at the date of interference by comparing the claimant’s enjoyment immediately before and after it. Complete exclusion from a previously specified area, and reduction from about 12 or 13 spaces to three or four for the same users, were substantial interferences. The appeal was dismissed and the damages award upheld.

The claimant held a long lease of a flat with a right to park a private motor car on space specified by the lessor. The lessor prevented parking between May 1997 and 1 August 2000 and thereafter offered only three or four spaces to the relevant lessees. A Deputy High Court Judge held that the lease conferred an easement to park, found substantial interference, and awarded £6,300 plus interest. The appeal concerned the true construction of the parking provision, the effect of the lessor’s redevelopment powers, the significance of competing tenants’ rights, and damages. The central issue was whether the lessor could withdraw or substantially reduce a previously specified parking right.

Sir Christopher Slade delivered the judgment, with Lord Justices Robert Walker and Auld agreeing. The appeal was dismissed unanimously.

1. Nature and construction of the right. Paragraph 7 of the Second Schedule conferred a right to park on the area previously specified by the lessor, subject to available space and reasonable regulations. The court left open whether the right was technically an easement, because the appeal could be decided on the contractual construction of the lease. The parties accepted that, as the land was registered, the right would bind the defendants as an overriding interest under the Land Registration Act 1925 section 70(1)(g).
2. No extinction at will. The words permitting specification from time to time gave the lessor power to vary the area in some circumstances, but did not make the right wholly determinable at the lessor’s whim. The redevelopment provision was to be read as a whole. Its purpose was to protect rebuilding or alteration from complaints about interference with light and air, not to authorise construction on the parking area or override the express parking grant. The definition of retained property added nothing to the defendants’ case.
3. Derogation from grant. The principle prevents a grantor from substantially depriving the grantee of the benefit conferred. The principle was explained in Johnston & Sons Ltd v Holland [1998] 1 EGLR 264 and applied to the lease construction consistently with William Hill (Southern) Ltd v Cabras Ltd (1986) 54 P&CR 42. Complete exclusion from May 1997 to 1 August 2000 frustrated the purpose of the parking grant and was a clear derogation from grant.
4. Substantial interference. An interference with an easement must be unjustified and substantial: Petty v Parsons [1914] 2 Ch 653 and Overcom Properties v Stockleigh Hall Residents Management Ltd (1988) 58 P&CR 1. The same test applied to the contractual right through the doctrine of derogation from grant. The relevant comparison was at the date of interference, not in 1985 and not by reference to hypothetical additional competitors. Reducing the available spaces from about 12 or 13 to three or four for the same group of users was substantial. The alleged statutory tenants had no established contractual right to park, and the sale of one space alone was not a substantial interference.
5. Damages and order. The trial judge’s assessment of £6,300, with £881 interest, was based on the evidence and disclosed no ground for appellate interference. The order was affirmed, subject to replacing the reference to an easement with the phrase right to park.

1. Court of Appeal (Civil Division) — In [2001] EWCA Civ 2011, the court dismissed the appeal with costs and affirmed the order, substituting the phrase right to park for easement to park.
2. High Court, Chancery Division — Mr Bernard Livesey QC, sitting as Deputy High Court Judge, ordered on 28 November 2000 that the claimant had a right to park, found substantial interference by exclusion and reduction of the spaces, and awarded £6,300 plus interest.