In Propertypoint Ltd v Kirri, Mrs Kirri claimed a right, by virtue of long use, to enter on to land owned by Propertypoint for the purpose of turning vehicles which were to be parked in her garage, so that those vehicles could park facing in the right direction in the garage.
Between 1982 and 2001 Mrs Kirri had accessed the burdened land directly from the alleyway outside her garage. However, between 2001 and 2006 this direct access was blocked by a hoarding. Mrs Kirri continued to use the burdened land to turn her car, but she had to take a more circuitous route over some adjoining land in order to do so.
In order to establish an easement through long use, it is necessary to show 20 years' uninterrupted use. Propertypoint argued that the two periods of use; from 1982 to 2001, and from 2001 to 2006, could not be added together, since access to the burdened land had been via a different route between 2001 and 2006.
The High Court dismissed this argument. The precise way in which the burdened land was used was not the issue. The question was whether the burdened land had been used for the right of way for 20 years. It did not matter that, between 2001 and 2006, access to the burdened land had been over land belonging to a third party, which Mrs Kirri had no right to use. Although an easement has to benefit the land to which it relates, the benefited land and the burdened land do not have to be contiguous. The absence of an enforceable legal right to use the intervening land was no barrier to the establishment of a right of way.
Finally, Propertypoint had argued that the right to turn or manoeuvre vehicles was not of the type or intensity required to establish an easement. It sought to draw a distinction between easements in North London as in the present case, and those that might be accepted in remoter parts of the country (as in Moncrieff v Jamieson).
The court disagreed. It saw no reason why a right of way should not, in theory, be established for the defined purpose of turning vehicles using the garage. The court distinguished the decision in Batchelor v Marlow (see Can a right to park a car be an easement?).
If anything, the court thought that a right of way to turn vehicles could be particularly important in the confined spaces often found in large conurbations, and that such an easement would be less likely to be necessary in a less built-up and highly populated area.
No specific part of the burdened land had been used by Mrs Kirri, and so the court held that it would be open to Propertypoint to build on the burdened land so long as sufficient space was left open to permit a normal-sized vehicle parking in the garage to turn on the remainder of the burdened land.
Things to consider
Batchelor v Marlow has been distinguished so many times (most notably, by the then House of Lords in Moncrieff v Jamieson) that one wonders whether any court will now have the courage to follow it. If not, then it seems that car parking easements - and now, turning easements - are here to stay.
The above analyses were written by Sarah Allen, associate in Wragge & Co's Real Estate group.
Perpetuities and Accumulations Act 2009