Servitudes of parking: Scots and English law

The Scottish House of Lords decision about the right to park your car on other people’s land, Moncrieff v Jamieson 2008 SC (HL) 1, has been discussed and distinguished by the Court of Appeal in Waterman v Boyle [2009] EWCA (Civ) 115, summarised in The Times for 30 March 2009.

The dispute was between neighbours (of course).  The claimants lived in a property previously owned by the defendants who had sold it while continuing to live in a neighbouring property previously part of what now belonged to the claimants.  There was a common right of vehicular access, and the sale had provided that the Watermans could not park more than two private vehicles thereon.  The question was whether this express right could be extended by implication from the right of vehicular access to allow further vehicles to park.  The Court of Appeal held not, and that the contrary decision of the judge at first instance had been a misunderstanding of Moncrieff (given its English citation of [2007] 1 WLR 2620). 

Giving the judgment of the court, Lady Justice Arden twice points out that Moncrieff was a Scottish decision but observes, citing Lords Scott and Neuberger, that it had been held that Scots law was the same as English law (paras 3 and 34).  She finishes with a stern warning to neighbours and their professional advisers (paras 39, 40):

“There is a common misunderstanding that an Englishman's home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours.  … While it is often true that a person can do what he wants on his own land, it is not always so. The law expects neighbours to show some give and take towards each other. The parties to this litigation should keep that point in mind for the future and now draw a line under the past. Parties to other boundary disputes and their advisers should also, at all times, have this point firmly at the forefront of their minds, and seek to resolve their disputes accordingly, and without resort to complex and expensive litigation.”

This clarion call should certainly ensure an outbreak of good neighbourliness across the land; but Lord Rodger may be worried that once again it is his fellow judges who are the people telling others not to litigate.  The turkey's view of Christmas comes to mind.