Car parking and development

The recent case of Kettel v Bloomfold (2012) EWHC 1422 (ch) has highlighted how important it is to carry out a thorough and realistic risk assessment at the outset of a proposed development. As in the Heaney case which involved rights to light the courts are willing to grant injunctions preventing a development from going ahead instead of making an award for damages.

In the Kettel case, a right to park a car or motorbike in a designated space had been given to each of eight leasehold flat owners. The freeholder was proposing to build a block of twelve flats and wanted to relocate the  eight parking spaces.

The leasehold flat owners objected and sought an injunction against the freeholder arguing that their exclusive occupation of a specific space amounted to a demise under the lease. The Judge disagreed with the freeholder’s argument but held that the right to park was a legal easement and that the landlord could not simply provide an alternative parking space. It was also an important factor that the lessees had immediately made clear their objections to the relocating of the car parking spaces and the freeholder was criticised for his high handed approach and failure to try and negotiate a variation of the lease terms

The freeholder had reserved a right to develop his adjoining land even if that development affected or diminished light or air to the existing flats but there was no express right reserved in the lease to vary the parking spaces..

The case highlights the need that even when further development is unlikely or not contemplated at all, to ensure that any easement including the right to park a car is capable of being varied.#

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