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Since the decision of the House of Lords in the case of Moncrieff v Jamieson, it has been settled in Scots law that a servitude right of parking can exist as an ancillary right to a servitude right of vehicular access. 

A recent decision of the Sheriff Appeal Court (Johnston v Davidson & Milne [2020] SAC (Civ) 22 FFR/A103-18) provided welcome further guidance from the Sheriff Appeal Court as to when such an ancillary right will be implied.

The background – right of access in common

The case concerned neighbouring properties at Fox Street, Carnoustie. Fox Street was noted as being a narrow single carriageway, ending in a dead-end with double yellow lines extending all the way along both sides of the road. The decision notes that it would be impossible to park a vehicle at any point on this road without blocking it entirely.

In order to access their property at 16 Fox Street, the pursuer required to take access over an area of land which formed part of the defenders’ property at 14 Fox Street (the disputed area).  The access rights to the pursuer’s property had been in place since 1997 when the properties had been built and the pursuer’s title included “a heritable and irredeemable servitude right of access in common” over the disputed area, which area was spacious enough to allow at least four vehicles to park.

After the defenders planted a tree and erected a fence and bollards on the disputed area, the pursuer raised an action seeking declarator that he had both a vehicular right of access over, and a right to park on, the disputed area. At first instance, the Sheriff found in the pursuer’s favour and granted the declarators sought.

The appeal – reconsideration

On appeal, the defenders argued that while it was accepted that there was authority for the proposition that a right of parking can be established as an ancillary right to a vehicular right of access, the facts of Moncrieff v Jamieson should be distinguished. In particular, Moncrieff concerned an express grant of a servitude right of vehicular access, whereas the servitude in the current action did not.

The appeal decision

In refusing the defenders’ appeal, the Sheriff Appeal Court set out the two-stage approach to be taken in considering the issue:

• firstly, they had to determine the nature of the rights conferred by the express grant of servitude.
• secondly, they then had to determine what ancillary rights were necessary for the comfortable enjoyment of the servitude.
  
  

In considering the first stage, the Court noted that the terms of the grant of servitude were unclear and ambiguous – in particular, did they convey a right of vehicular access to the pursuer? This was a key point as the Court’s view was that there could not be an ancillary right of parking without a vehicular right of access.

Having regard to the terms of the grant, the surrounding circumstances, and the anticipated future use of the property, the Court was ultimately satisfied that, properly interpreted, the express grant did give rise to a right of vehicular access. In reaching that view, they considered relevant both the evidence of the developer who originally constructed the property, as well as the fact that the right to drive and park on the disputed area had been exercised for almost ten years before objection was taken.

As regards the second stage test, the Court determined that the ancillary right of parking was necessary for the comfortable enjoyment of the servitude right given the benefits it brings in all the circumstances of this particular property. In reaching that decision the Court commented:

“the configuration of the location is important – it is virtually impossible to park in the street with the consequence that, without the right to park, the right becomes limited to drop off only and therefore to render the servitude of very limited value; it was always intended that it be used for parking and was so used until the defenders took steps to obstruct it – that suggests the right to park was seen as an integral part of the enjoyment of the subjects”. 

The future

This decision of the Sheriff Appeal Court is a welcome addition to the growing bank of case law on the question of servitude rights of parking, providing further helpful guidance as to the circumstances in which the courts will imply the existence of a right of parking as ancillary to a servitude right of vehicular access. While each case will turn on its own facts and circumstances, this decision reaffirms the approach and test which will be applied by the courts and which will assist in establishing whether parking is indeed permitted.

 

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