CAMPDEN HILL GATE LIMITED v DUCHESS OF BEDFORD HOUSE RTM COMPANY LIMITED & Ors

A settled practice of residents in a block of flats parking their cars in a defined area may establish a communal right to park appurtenant to the block. It is unnecessary to prove that every resident parked there. The assessment is qualitative and depends on whether the evidence establishes a sufficiently settled practice.

A parking easement is not invalid merely because available spaces are insufficient for all beneficiaries to park simultaneously. The right may operate in competition with other persons having like rights.

Contractual language excluding rights which might restrict future rebuilding, alteration, development or redevelopment is capable of excluding a subsisting parking easement where the right could affect future works.

The appeal concerned competing rights over Sheldrake Place East, a private road adjoining Duchess of Bedford House and forming part of the wider Phillimore Estate. The respondents, owners of long leases of flats in Duchess of Bedford House, claimed a right to park there.

The County Court held that a settled practice of parking existed by 1969, that the right was reserved under the 1969 headlease as a legal easement, and that it passed under the 1974 headlease to the Duchess of Bedford House headlessee. It granted a declaration recognising the respondents’ right to park.

The appellant challenged the factual findings, the existence and character of the easement, and the construction of the 1974 headlease’s carve-out. The central issue was whether that carve-out excluded the parking right from the 1974 demise.

1. Appeal allowed. The factual challenge was rejected. The trial judge was entitled to find that a substantial number of residents who owned cars parked on Sheldrake Place East. Appellate intervention was unwarranted because the evaluation was not clearly wrong. The assessment was qualitative rather than a mathematical exercise (paras [28]-[44]).
2. The principle in Newman v. Jones applied beyond a claim by an individual flat owner. A settled practice of tenants generally parking in a defined area may establish a communal right or quasi-easement appurtenant to the block as a whole. Evidence that every tenant parked was unnecessary. The relevant inquiry was whether the evidence showed a settled practice such that the question whether tenants could park would receive a general affirmative answer (paras [55]-[67]).
3. The parking right fell within the 1969 headlease reservation of easements, quasi-easements and rights belonging to or enjoyed by adjoining or neighbouring premises. It was sufficiently certain to constitute a legal easement. Competition for limited spaces did not invalidate it (paras [68]-[76]).
4. The 1974 headlease’s carve-out was a compromise. Subsisting rights were generally included, but rights which might restrict or prejudicially affect future rebuilding, alteration, development or redevelopment were excluded. The word “might” required doubts in marginal cases to be resolved in favour of exclusion. The parking right could affect possible future alterations to Sheldrake Place East, including changes to parking arrangements, notwithstanding the separate right of way. It was therefore excluded from the 1974 demise and remained with the Phillimore Estate (paras [93]-[115]).
5. The declaration recognising the respondents’ right to park could not stand. The appeal was allowed on Ground 1.

• County Court at Central London: HHJ Gerald declared that the respondents, as underlessees of flats in Duchess of Bedford House, had a right to park on Sheldrake Place East.
• High Court, Chancery Appeals: The appeal was allowed. The court upheld the findings concerning the settled practice, the 1969 reservation and the existence of a parking easement, but held that the 1974 headlease excluded that easement from the demise.