Kettel & Ors v Bloomfold Ltd

A right granted in a lease to use an identified parking space may constitute an easement rather than a demise. Whether the right is capable of existing as an easement depends on the terms of the grant and whether the freeholder retains meaningful possession and control of the land. A servient owner cannot ordinarily extinguish an easement over identified land unilaterally by offering an equally convenient alternative. Substantial interference with an express parking easement is actionable. The claimant is prima facie entitled to an injunction, and damages in lieu are reserved for exceptional circumstances. The availability of an alternative space does not, without more, make an injunction inappropriate. If damages are awarded, the proper basis may be a negotiated release fee representing the value of permitting the otherwise unlawful development.

The claimants held long leases of eight flats at a residential development. Each lease referred to a designated parking space. The defendant, the freeholder, obtained planning permission for a new block which would occupy those spaces and fenced them off. It offered alternative spaces and asserted a right to reallocate the claimants’ parking rights.

The claimants sought an injunction. The issues were whether their rights were demises or easements, whether the leases permitted the defendant to build over or relocate the spaces, whether the interference was actionable, and whether damages should replace an injunction.

1. Nature of the rights. The leases demised the flats and granted ancillary rights. The language granting the sole right to use a specified parking space for parking a taxed car or motorbike did not demise the space itself. The rights were easements.
2. Capacity to exist as an easement. Batchelor v Marlow [2003] 1 WLR 764 remained binding. The question was one of fact and degree. The relevant inquiry was whether the grant left the freeholder without any reasonable use of the land. Here the defendant retained significant rights, including access, maintenance, repair, service-media installation and potentially construction above the spaces. Its ownership was therefore not rendered illusory.
3. Building and relocation. The general reservations permitting construction on neighbouring land or affecting amenity and access did not clearly override the express parking rights. Nor did the leases imply a power unilaterally to replace the identified spaces with others. Temporary obstruction reasonably necessary for maintenance could be implied, but permanent extinguishment could not.
4. Interference and remedy. Fencing off the spaces substantially interfered with the easements, notwithstanding the offer of alternatives. The claimants were prima facie entitled to an injunction. The exceptional circumstances identified in Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 were absent. The defendant’s private profit and high-handed conduct did not justify permitting expropriation of the claimants’ property rights.
5. Alternative damages assessment. Although unnecessary to decide, damages would have been assessed on a release-fee or hypothetical-negotiation basis, not nominally. The likely negotiated value would have been apportioned after allowing for the developer’s profit.

An injunction was granted.