Montrose Court Holdings Ltd & Anor v Shamash & Ors

Where a parking easement is held in common, a power to make parking regulations may be used to secure orderly and fair enjoyment by all those entitled. The question is whether the regulations substantially cut down the granted shared right, rather than whether they inconvenience an individual user. A one-vehicle limit and a 72-hour limit were valid where they rationed access to scarce spaces without reducing the overall common parking right. A parking liberty passing under Law of Property Act 1925, section 62(2), remains subject to conditions in the conveyance, including a valid requirement to observe parking regulations.

The estate owners of a residential development introduced a permit scheme for limited parking space on its service road and forecourt. The owners of a freehold house claimed an easement to park on the rear service road and contended that the scheme unlawfully interfered with it.

HHJ Rich QC in the Central London County Court declared that the house had a parking easement, subject to the 1987 transfer. He held that the owners could make the proposed regulations, but required them to issue two residents’ permits at once. He upheld the 72-hour parking limit.

The estate owners appealed the two-permit requirement. The householders cross-appealed against the temporal limit. The central issue was whether the numerical and temporal restrictions were proper regulations of a shared parking easement or a substantial derogation from the grant.

Appeal allowed and cross-appeal dismissed. The court held unanimously that both the one-vehicle-at-a-time restriction and the 72-hour restriction were valid regulations. The lower court’s order was varied to remove the entitlement to two simultaneous residents’ permits and to correct the estate title number.

1. The court did not need to decide whether the parking easement had arisen through section 62(2) of the Law of Property Act 1925, because the declaration of its existence was unchallenged. Any parking liberty conveyed under that provision was conveyed as part of, and subject to, the 1987 transfer. It was therefore subject to the covenant requiring observance of properly made parking regulations.
2. The declared easement was a right to park in common with the other householders, flat tenants and penthouse occupiers. Its purpose was not to give the householders priority over those other users. Regulations may restrict each individual’s use where that restriction enables the group as a whole to obtain real and orderly benefit from the shared right.
3. Saeed v Plustrade Ltd [2002] EWCR Civ 2001 concerned a reduction in the parking capacity available to the same class of right-holders. That was a substantial interference with the right granted. Here, however, the regulations did not reduce the shared right to compete for the available service-road spaces. They rationed its exercise among approximately 114 households. The one-vehicle limit was consequently proper, as was the 72-hour limit intended to allow turnover.

Chadwick LJ additionally observed, without deciding the point, that a claimed right to occupy part of the servient land continuously for 72 hours to the exclusion of the freeholder and other users might not subsist as an easement. Moore-Bick LJ and Collins J agreed with the disposition. Time for the cross-appeal was extended; the appellants received their costs here and below, subject to detailed assessment.

• Court of Appeal (Civil Division) In [2006] EWCA Civ 251, allowed the estate owners’ appeal, dismissed the householders’ cross-appeal, and varied the County Court order.
• Central London County Court On 18 May 2005, HHJ Rich QC declared a parking easement for No. 1 Montrose Court, subject to the 1987 transfer. He permitted the regulations but required two simultaneous residents’ permits and upheld the 72-hour limit.