England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
SITTING AT EXETER COMBINED COURTS
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BARNSTABLE COUNTY COURT
(MR RECORDER BROCK QC)

		Exeter Combined Courts Castle Road Exeter Thursday 1 November 2001

1. LORD JUSTICE MUMMERY: I will ask Lord Justice Tuckey to give the first judgment.
2. LORD JUSTICE TUCKEY: This is an appeal from one part of an order made by Mr Recorder Brock QC on 23 March 2001 in the Barnstable County Court in this dispute between neighbours about rights of way and, more specifically, about parking.
3. The dispute centred on and around the drive to what was once a large Victorian mansion overlooking the sea in single ownership on the outskirts of Westward Ho. These cases are best described and understood by reference to a plan. In this case the judge attached a plan to his judgment and I propose to refer to this for the benefit of those who have it.
4. The big house, known as Hillsborough House, is now owned by the appellants, Mr and Mrs Coombes, although it has been occupied as a number of separate units by them and their family. Their property is edged green on the judgment plan. At the end of the drive there is a cottage which is owned by Miss Dymond, the respondent. Her property is edged red on the judgment plan. She has a right of way for all purposes over the drive, which is hatched red on the plan and described by the judge and in the order he made as "the Drive". She has special rights over a small area of the Drive beside her cottage, which is shown marked "C" edged blue on the judgment plan and is described as the "Covenant Land".
5. The judge held that neither party had a right to park on the Covenant Land so as to enable both parties to manoeuvre vehicles in what is otherwise a confined space at the end of the drive. The appellant, and those to whom they were responsible, had been parking and putting things on that land for some time, despite the fact that they had given an undertaking to the court not to do so on 28 January 2000. The judge, therefore, made a declaration in relation to the Covenant Land:

"....for the avoidance of doubt that the Defendants may not park or place anything on the Covenant Land at any time".

6. Another small piece of land immediately to the north of the Covenant Land also, adjoining the respondent's cottage, which is shown marked D hatched yellow on the judgment plan and described as the "Dymond Land", belongs to the respondent, although it was originally part of the drive.
7. By paragraph 4 of his order, the judge said:

"That it be declared for the avoidance of doubt that the Defendants may park vehicles on the Drive provided that in so doing they do not interfere substantially with the Claimant's rights over the Drive and provided that they do not park or permit to be parked any vehicles on the Dymond Land or the Covenant Land or on any part of the Drive within 5 metres of the Dymond Land or the Covenant Land."

8. This 5 metre restriction is the subject of the appeal. The appellants contend that it was unfair for the judge to impose such a restriction because he made it on his own initiative without giving them the opportunity to oppose it and because in any event it was unjustified.
9. For the purpose of resolving these issues on appeal, it is not necessary to consider the background in much further detail. It is set out fully and clearly in the judge's judgment. The short history of the dispute however is as follows.
10. The respondent's father purchased the whole property in 1968 and then divided it by conveying the cottage and its land to the respondent. In 1979, Mr Dymond sold Hillsborough and its land to the appellants after giving the Dymond Land to the respondent. Her special rights over the Covenant Land were created by a covenant given by the appellants at the time they bought Hillsborough. The north side of Hillsborough is divided into two flats. The appellants have lived on the ground floor, although they have let a small part of that floor to their daughter who now apparently spends much of her time in London. Mr Coombes' elderly father lives in the first floor flat. The appellant's son, Mr Chamberlaine, and his family intend to occupy the south side of the house, which includes a tower. This has necessitated extensive renovation of the building. This work which started in 1999 gave rise to the dispute. Contractors' vehicles parked and materials placed on the drive resulted in a number of unpleasant incidents which led the respondent to take the present proceedings. The judge took the view that the appellants had behaved in a cavalier fashion with little consideration for the respondent. His judgment clarified the parties' property rights, which he said neither of them fully understood. The orders he made were obviously designed to prevent further trouble or misunderstanding in the future. That was, in my judgment, a laudable objective and I pay tribute at this stage to the clarity and good sense of the judge's judgment as a whole, without prejudging the issues which we have to decide on this appeal.
11. The judge declared that the respondent had a right of way over the drive, which included the right to manoeuvre and turn vehicles at its western end (the end where the Covenant Land is), and, in particular, to do that on the Covenant Land. She also had the right to stop on the drive for the purpose of picking up and setting down passengers and loading and unloading luggage etc, but no right to park on the drive herself.
12. Dealing with the appellants, under the heading "Can the defendants park vehicles on the drive?" the judge said:

"I have already made it clear that the Defendants as servient owners must have at least the same rights over the Drive as Miss Dymond. However, the question remains whether they are entitled to park (that is leave locked or unlocked for extended periods of time) vehicles on the Drive as they plainly have done in the past and in particular adjacent to Hillsborough. In my view, they can park vehicles along the length of the Drive so long as it is sufficiently wide for Miss Dymond's car and the cars or delivery vehicles or her guests or visitors to pass. Equally, they can park a vehicle or vehicles adjacent to Hillsborough at the western end of the Drive (but not on the Covenant Land or the Dymond Land) but again only in so far as such parking does not interfere with Miss Dymond's rights. For the avoidance of doubt, and in order to clarify the position for the future, I hold that they should not be entitled to park vehicles, that is to say any vehicles locked or unlocked for any longer than is necessary to pick up, load or unload, within five metres of the Dymond Land and the Covenant Land."

13. The trial took place on 8/9 February 2001. The judge produced a typed judgment for the purposes of the hearing on 23 March 2001. The part dealing with the restriction, to which I have just referred, is in manuscript. The notice of appeal by the appellants complains:

"The restriction had not been asked for in the particulars of claim or sought by the claimant in the course of the trial, and no suggestion was then made by the judge or anyone else that it would or might be necessary. The judge heard no evidence which bore on the point, and no submissions were asked for or made as to whether or not the restriction would be appropriate in the circumstances....The defendants were taken completely by surprise, and were given no opportunity to challenge the judge's (implied) conclusion that the restriction was necessary."

14. At the outset of the hearing before us, Mr Gosland, for the appellants, applied to admit further evidence for the purpose of the appeal in order to inform the court as to what the appellants would have said if they had had notice of the judge's intentions. This application was opposed by Mr Curwen for the respondent. Mr Gosland made it clear that if we admitted the evidence he would not ask for the case to be remitted for further hearing, but would ask us to decide whether the restriction was justified in the light of the further evidence. We decided to admit the further evidence on this basis. It is, therefore, not necessary to consider further the appellants' complaint of unfairness.
15. The new evidence is from Mr Coombes saying that the long lease to his father of the first floor flat gave him a right to park one vehicle on that part of the drive in front of Hillsborough House, which has been called "the forecourt". There is also evidence from his daughter whose lease gives her a similar right subject to there being no objection from the owner of the cottage. Neither lease permits the parking of vehicles which have broken down.
16. The other new evidence is from Mr Wright who is a surveyor. He inspected Hillsborough and the right of way earlier this year. He has prepared a number of scale plans; the judgment plan was not to scale. He notes that:

"The grounds are steeply sloping and face north. Because of the building work, landscaping and general refurbishment now taking place, the gardens and grounds resemble a building site with piles of rubbish and some old cars stored on the land."

17. Turning to the question of car parking, he comments:

"Off street car parking is physically possible on the west end of the drive where it widens out in front of Hillsborough House and the two flats...."

18. This is the forecourt.

"Excluding the area owned by [Miss Dymond] and the covenanted land it is possible to park two cars or small vans (or possibly three small cars) on the [forecourt] leaving space for cars to pass. The drive itself is not wide enough to accommodate parked cars and leave space for passing.

....the driveway includes an area in front of Hillsborough House which is elevated above the driveway and not physically part of it. This is a garden area (although two scrap vehicles are temporarily stored on it) and the surface is on average about a metre above the drive. This area could possibly be used on a casual basis for one car but it would always be at risk of being blocked in."

19. Mr Wright has prepared a scale plan which shows the forecourt with (for illustration purposes only) a van (no doubt a large white van of the kind shown in the photographs) and a Jaguar (no doubt being Mr Coombes senior's Jaguar, which the photographs show has no wheels) parked on it. They occupy the whole forecourt. More relevantly, this plan shows that, with vehicles in these positions, any form of access to the Covenant Land from the drive is impossible.
20. The area of raised land which Mr Wright describes is shown on the plans edged yellow. It is quite a substantial triangular piece of land which is also shown in the photographs. It is about 5 metres wide at its base and about 20 to 30 metres long.
21. In a second plan the surveyor has drawn a blue line to show the 5 metre exclusion zone. This establishes that if the line is drawn in that position, it would not be possible for the appellants to park on the forecourt, although it would in no way restrict parking on the raised triangular piece of land to which I have referred.
22. The report also refers to the fact that the nearest on-street parking to Hillsborough House, on the assumption that the occupants cannot park on any part of the Drive, is about 240 metres away from the house. The judge refers in his judgment to a drive which is in the process of being constructed leading from the Drive to the southern side of Hillsborough House. At the time the judge gave his judgment this drive had not been completed because of the difficult terrain, and we are told it is still not complete. However, as the judge said, the sooner this drive is completed, the better from the point of view of relieving the parking problems on this site.
23. On the basis that there is no car parking available to the occupants of Hillsborough House, the surveyor estimates that its value would be depreciated by about £30,000.
24. Mr Gosland submits that the judge's restriction he went further than was required. If the order had stopped at the point where it declared that the defendant should not park vehicles so as to interfere substantially with the claimant's rights over the Drive, there could be no possible objection to it since that merely defined the rights and obligations as between dominant and servient owner of an easement of this kind. But, he says, it does not necessarily follow that any parking within the 5 metre restriction area would interfere substantially with the respondent's rights and, therefore, the order went too far. It should have been left for the parties to work out for themselves and, if necessary, engage in further litigation to determine whether any particular act of parking did or did not interfere substantially with the claimant's rights.
25. Mr Gosland submits that the effect of the judge's order substantially interferes with the appellants' rights over their own property, and means that whereas hitherto they have been able to park on the forecourt without objection from the respondent they will no longer be able to do so.
26. I do not accept these submissions. The order which the judge made is, I think, no more than a sensible definition and exposition of the respondent's rights. Part of her right to use the drive is to gain access to her own land, the Dymond Land. The Covenant Land is part of the drive. Without the restriction she cannot make use of it. That is a space upon which neither party may park but it facilitates the use of the drive by both parties as the judge said, "to keep clear the space in question so as to enable both parties to manoeuvre vehicles in what is an otherwise confined space".
27. If the appellants are allowed to continue to park their vehicles on the forecourt, they will effectively prevent the respondent from being able to use the right of way, which must include a right to manoeuvre into and out of her property to which the right gives access. The learned judge considered that the distance required to be kept clear to give effect to his exposition of their rights was 5 metres (rather less than two car lengths) which did give the respondent room to manoeuvre her vehicle so that she or her guests did not have to reverse back down the drive.
28. It was in the interests of both the parties for the avoidance of doubt and to prevent future argument on the point that there be a clearly defined area in which parking was forbidden to allow the respondent and her guests access to and from the Dymond land and the Covenant Land. That is precisely what the judge's order achieved.
29. These parties needed an order which would, so far as possible, avoid further litigation between them. That would have been achieved by an order which left it for them to argue whether any particular parking was or was not a substantial interference with the right of way.
30. There is of course an element of detriment to the appellants in that they cannot now park on the forecourt. But it seems to me that the substantial area, edged yellow on the plan, could easily provide adequate parking for those who occupy Hillsborough House, even if the problem is not further relieved by the construction of the drive to the south of the house. However, neither the detriment to the appellants or any of the other further evidence persuades me that the judge's restriction was unjustified or unreasonable. I think he produced the right answer in this case.
31. For those reasons, I would dismiss this appeal.
32. LORD JUSTICE MUMMERY: I agree.
Order: Appeal dismissed with costs. Detailed Legal Aid assessment of Appellant's costs.