Waterman & Anor v Boyle & Anor

A right of vehicular access does not ordinarily carry an implied right to park. The question is whether, in the circumstances existing when the right was granted, parking was reasonably necessary for the exercise or enjoyment of the access right. Mere convenience or desirability is insufficient. An express parking right over the same land, particularly where it appears adequate, makes implication of a further right highly unlikely; only quite exceptional circumstances could justify it.

An act on adjoining land can exceptionally interfere with an access right, but actionable interference requires substantial interference with reasonable use of the way. Constructing a secure boundary wall in an ordinary and reasonable use of land outside the servient tenement did not meet that threshold.

The respondents owned 2, Hog Lane Farm, one of three adjoining dwellings originally developed and sold by the appellants. Their disputes concerned the southern boundary, access from a rear lane to a garage, parking on a northern entrance drive, and the removal of a tree affecting access.

At trial in the Central London County Court, His Honour Judge Collins CBE decided the principal issues in favour of the respondents. He held that the rear-lane access extended sufficiently to permit reasonable use by vehicles and that ancillary parking rights for visitors were implied into the northern access right.

The appellants appealed. The central issues were whether the transfer implied additional access or parking rights, whether a wall wholly outside the lane substantially interfered with access, and whether the judge’s order concerning the tree was legally or factually unsustainable.

1. Rear access. The transfer conferred a right of access over a lane of fixed location. Permission to build a garage did not expressly extend that right, and no such extension could be implied. The first-instance judge’s purposive interpretation made the right effectively ambulatory and was wrong.
2. Interference with access. An act on adjacent land can, in exceptional circumstances, interfere with a right of access. For actionable nuisance, however, the act must substantially interfere with the right and interfere with reasonable use of the right: Celsteel v Alton House Holdings Ltd [1985] 1 WLR 204. A secure wall built wholly outside the servient tenement, as an ordinary and reasonable use of the adjoining land, did not satisfy that test. The respondents could reasonably adapt the garage, and insisting on access without doing so was additionally unreasonable.
3. Implied parking. The relevant question was whether, having regard to the circumstances at the time of the transfer, using the northern drive to station vehicles for the duration of a visit was reasonably necessary for use or enjoyment of the property. Mere desirability was insufficient: Cannon v Villars (1878) Ch D 415; Bulstrode v Lambert [1953] 1 WLR 1064; London and Suburban Land v Carey (1991) 62 P & CR 480. The transfer contained an express right to park two private vehicles and identified further parking spaces at the rear. The right of way could therefore be substantially enjoyed without the additional implied right.
4. An express right attaching to the same property and of a similar character to the right sought to be implied makes implication very unlikely. The circumstances would have to be quite exceptional. The express right was limited to private vehicles, so no implied right to park commercial vehicles arose.
5. Moncrieff v Jameson [2007] 1 WLR 2620 applied the same reasonable-necessity test, but its exceptional facts did not support the respondents’ case. The tree-removal decision was neither legally wrong nor perverse.
6. The appeal was allowed in relation to damages for substantial interference with access and the implied visitor-parking right. The respondents’ notice was dismissed. Costs were left for written submissions.

• Court of Appeal (Civil Division): On appeal from the Central London County Court, the court allowed the appellants’ appeal concerning the rear access damages and implied visitor-parking right, dismissed the respondents’ notice, and invited written submissions on costs.
• Central London County Court: His Honour Judge Collins CBE determined the principal disputes in favour of the respondents, including the implied parking right and interference with rear access.