Poste Hotels Ltd v Cousins

Long use may establish a prescriptive easement where the court can identify a reasonably possible lawful origin. A right to park may be appurtenant to a dominant tenement even where it is a general right to compete for available parking. Such a right is subject to an earlier right of way and cannot authorise interference with it.

Use by members of the public cannot provide the lawful origin of a prescriptive easement where no dominant tenement is accommodated. A declaration is discretionary and should be refused where it would serve no practical or useful purpose.

The claimant and defendant owned adjoining properties served by Church Court, a private cul-de-sac. The claimant claimed a prescriptive vehicular right of way to premises used as a laundry and alleged that the defendant’s parking obstructed that right. The defendant claimed a prescriptive right to park in Church Court, including outside the laundry.

The County Court held that both parties had certain rights, but that the defendant had no right to park outside the laundry. It declined to grant the defendant a negative declaration concerning the claimant’s alleged parking rights and made no order as to costs. The defendant appealed and the claimant cross-appealed.

1. The claimant’s cross-appeal was dismissed. The defendant had acquired by prescription a general right to park in Church Court, appurtenant to 67 High Street.

2. The relevant user was open, peaceful and without permission. The court had to identify a reasonably possible lawful origin. A notional grant of an easement of parking was such an origin. Parking by members of the public was not lawful user capable of supplying that origin because it did not accommodate an identified dominant tenement. The reasoning in Le Strange v Pettefar was confined to its statutory and factual context and did not govern prescription in this case.

3. The claimant’s right of way had arisen before the defendant’s right to park. The owner of Church Court could grant a later right to park, but only subject to the earlier right of way. The defendant’s general right to park therefore did not include a right to obstruct access to the laundry.

4. The defendant’s alternative arguments based on prescription of a right to commit a nuisance, estoppel by acquiescence and laches failed on the facts. There had not been 20 years’ interference with the claimant’s right of way, and the relevant obstruction had arisen only in comparatively recent times.

5. The judge was entitled to adjourn the claimant’s injunction application. The claimant had not abandoned it, and the defendant could advance her arguments when an injunction was actually sought. The adjournment period had expired without such an application.

6. The defendant was not entitled to a negative declaration that the claimant had no right to park. Although she could potentially have standing if there were actual or threatened interference with her easement, there was no such interference or threat. Applying the principles governing declaratory relief, the proposed declaration would not be practical or useful. The appeals were dismissed. Costs and consequential matters were reserved.

High Court (Chancery Division): appeals by the defendant and claimant’s cross-appeal from orders made by His Honour Judge Yelton in the County Court at Cambridge on 22 July 2019. Both appeals were dismissed.