Restrictive Covenants - parking on a local highway

Bigwhitevanman

Well said edgex from what I’ve read on here, this is a pathetic little man, who incidentally feels its ok to park his own commercial vehicle breaking this so called covenant but yet threatens other residents with legal action for doing just the same. Its beyond belief. I’d  get another resident to complain about his van and await the answer. Lets have a laugh at his reason. He clearly has nothing better to do apart from ripping hard working people off.
Its him that needs removing from the estate.
He should set an example for others to follow, no wonder this is winding the OP up

User_220321

Unless I am missing something obvious, this company works for you indirectly, and if they make a mistake you will be paying for it.  This has nothing to do with parking, but just that you are liable for their costs. I think people are obviously interested in how this stands legally as people might want to purchase such a property.  All I know is these charges are how they are, same applies to say your Local Authority, if your car is damaged due to them not having money to fix the road, they pay you and up your council tax to pay for it, money doesn't grow off a tree!

He doesn’t need a tree, we pay £300 PA already for service charges. These charges are in addition to these separate charges that are for a letter to tell us we’re breaking a term of the lease... which we are told is no longer a relevant term. This is why this charge is very confusing and hard to have removed.

edgex

Section62 said:

edgex said:

Will people stop prattling on about covenants!

The roads have been adopted by the LA. That means that they are now public highways, public rights of way, available to anyone & everyone. Anyone can park any type of vehicle there, unless the LA has imposed conditions.

The Management Co are there to manage the land owned by the Freeholder, & enforce any Rules that cover that land.
They have no powers over the public highway.

Are there any examples of case law that support that assertion?

YOU are the one stating that private covenants can be imposed on the public highway.
So why don't YOU provide the legislation & multiple examples of case law that states that is the case?

What if the OP was a tenant? A visitor, workman, postman, delivery driver, ambulance service, fire brigade? Would the Management Co be able to impose the Rules on them?

Ditzy_Mitzy

edgex said:

Section62 said:

edgex said:

Will people stop prattling on about covenants!

The roads have been adopted by the LA. That means that they are now public highways, public rights of way, available to anyone & everyone. Anyone can park any type of vehicle there, unless the LA has imposed conditions.

The Management Co are there to manage the land owned by the Freeholder, & enforce any Rules that cover that land.
They have no powers over the public highway.

Are there any examples of case law that support that assertion?

YOU are the one stating that private covenants can be imposed on the public highway.
So why don't YOU provide the legislation & multiple examples of case law that states that is the case?

What if the OP was a tenant? A visitor, workman, postman, delivery driver, ambulance service, fire brigade? Would the Management Co be able to impose the Rules on them?

He tried to.  The case cited related to planning rather than highways and didn't prove anything.  It was a brave attempt in the circumstances.  

rik111

Does this weasel have a drive way ? Go park your van on it and leave it there for the weekend. It is in no way illegal and neither he nor the Police can make you move it. He can take you to court for trespass and eventually force you to remove the vehicle by which time it will be long gone. If he damages your van, now that is a Police matter. He seriously needs to be taught a lesson and just picture his face when he rings the Police and they tell him it is a civil matter and they are powerless as no criminal offence has taken place.

Section62

edgex said:

YOU are the one stating that private covenants can be imposed on the public highway
So why don't YOU provide the legislation & multiple examples of case law that states that is the case?

I did just that.  I responded to davidmcn's query about why a covenant would be used to implement car free development.  The use of covenants has become a routine way to stop occupiers of car free development being able to park on the surrounding public highway.

As I've stated several times, this is a complex area of highway law.  I provided details of a relatively recent case decided by the Appeal Court (thus forming a precedent). An element of which is the imposition of a private covenant on future occupiers of a dwelling restricting their ability to park on the local public highway.

It proves the point that a private covenant is capable of restricting an individual's use of the public highway.

The part of your post I've changed to bold possibly explains the ongoing misunderstanding here. The private covenant is not "imposed on the public highway".  The covenant is applied to a private property (e.g. a house or flat) and is restrictive (like many other covenants) but unusually extends the restriction beyond the boundaries of the property into the public realm.

That is why the status of a road changing from unadopted to adopted makes no difference.  The usual extinguishment of covenants in the creation of a highway doesn't apply to adjoining land - so the private covenant could remain intact and effective.

Whether or not that applies in the OP's case is unclear.  We haven't seen all the applicable agreements, and it isn't clear whether the legal advice they have had to date has fully taken this complex issue into account.  Hence my suggestion the OP takes the information given on this thread and seeks independent professional legal advice (from a suitably experienced solicitor) prior to adopting any risky legal strategy.

edgex said:

What if the OP was a tenant? A visitor, workman, postman, delivery driver, ambulance service, fire brigade? Would the Management Co be able to impose the Rules on them?

It would depend on the wording of the covenant.  If those people/services were included in some form of restrictive covenant then I expect a Management Co would be entitled to attempt to impose the rules.

But to be clear, it would be the owner/leaseholder/occupier etc that action could be taken against - not the visitor, workman, postman, delivery driver, ambulance service, fire brigade.

I'm not a lawyer, but my guess would be that if a covenant of that type were to be challenged in relation to postal, ambulance, fire (and police) services then I don't think a Management Co would stand a chance, as these services operate on a statutory basis and enjoy the benefit of multiple exemptions in their own right.  There is no societal benefit from restricting their activities.

If your question is specific to the OP's case then it is impossible to say, as we haven't seen enough of the lease (and any supporting documents) to be able to tell.

Ditzy_Mitzy said:

He tried to.  The case cited related to planning rather than highways and didn't prove anything.  It was a brave attempt in the circumstances.  

I'm sensing hostility here and don't understand why.  Surely the important thing is for the OP to get accurate information to help them decide what to do next?

The Khodari case originates in a planning situation, but the relevant part revolves around the ability of a private covenant to affect an individual's (owner/occupiers) right to use the local public highway.

The OP has been repeatedly told by various posters that no covenant can affect their right to use the public highway.  The people making that assertion have provided no evidence or case law which supports what they are saying.  If they are wrong - and it eventually turns out this Maintenance person knew what they are talking about - then how have those assertions helped the OP?

Personally I think the OP has a reasonable chance of winning this.  But it is important for them to get the right advice and fight the correct points, rather than relying on people's gut-feel.

If anyone can identify a specific legal provision or case which gives the OP what they need then that would be useful and enlightening.

rik111

Section62 said:

edgex said:

YOU are the one stating that private covenants can be imposed on the public highway
So why don't YOU provide the legislation & multiple examples of case law that states that is the case?

I did just that.  I responded to davidmcn's query about why a covenant would be used to implement car free development.  The use of covenants has become a routine way to stop occupiers of car free development being able to park on the surrounding public highway.

As I've stated several times, this is a complex area of highway law.  I provided details of a relatively recent case decided by the Appeal Court (thus forming a precedent). An element of which is the imposition of a private covenant on future occupiers of a dwelling restricting their ability to park on the local public highway.

It proves the point that a private covenant is capable of restricting an individual's use of the public highway.

The part of your post I've changed to bold possibly explains the ongoing misunderstanding here. The private covenant is not "imposed on the public highway".  The covenant is applied to a private property (e.g. a house or flat) and is restrictive (like many other covenants) but unusually extends the restriction beyond the boundaries of the property into the public realm.

That is why the status of a road changing from unadopted to adopted makes no difference.  The usual extinguishment of covenants in the creation of a highway doesn't apply to adjoining land - so the private covenant could remain intact and effective.

Whether or not that applies in the OP's case is unclear.  We haven't seen all the applicable agreements, and it isn't clear whether the legal advice they have had to date has fully taken this complex issue into account.  Hence my suggestion the OP takes the information given on this thread and seeks independent professional legal advice (from a suitably experienced solicitor) prior to adopting any risky legal strategy.

edgex said:

What if the OP was a tenant? A visitor, workman, postman, delivery driver, ambulance service, fire brigade? Would the Management Co be able to impose the Rules on them?

It would depend on the wording of the covenant.  If those people/services were included in some form of restrictive covenant then I expect a Management Co would be entitled to attempt to impose the rules.

But to be clear, it would be the owner/leaseholder/occupier etc that action could be taken against - not the visitor, workman, postman, delivery driver, ambulance service, fire brigade.

I'm not a lawyer, but my guess would be that if a covenant of that type were to be challenged in relation to postal, ambulance, fire (and police) services then I don't think a Management Co would stand a chance, as these services operate on a statutory basis and enjoy the benefit of multiple exemptions in their own right.  There is no societal benefit from restricting their activities.

If your question is specific to the OP's case then it is impossible to say, as we haven't seen enough of the lease (and any supporting documents) to be able to tell.

Ditzy_Mitzy said:

He tried to.  The case cited related to planning rather than highways and didn't prove anything.  It was a brave attempt in the circumstances.  

I'm sensing hostility here and don't understand why.  Surely the important thing is for the OP to get accurate information to help them decide what to do next?

The Khodari case originates in a planning situation, but the relevant part revolves around the ability of a private covenant to affect an individual's (owner/occupiers) right to use the local public highway.

The OP has been repeatedly told by various posters that no covenant can affect their right to use the public highway.  The people making that assertion have provided no evidence or case law which supports what they are saying.  If they are wrong - and it eventually turns out this Maintenance person knew what they are talking about - then how have those assertions helped the OP?

Personally I think the OP has a reasonable chance of winning this.  But it is important for them to get the right advice and fight the correct points, rather than relying on people's gut-feel.

If anyone can identify a specific legal provision or case which gives the OP what they need then that would be useful and enlightening.

What a load of guff. The OP has already been advised by the Councils legal team and and taken independent legal advice why are you trying to cast doubt on what far more expert opinions are telling him ? The maintenance guy is just a jumped up little numpty who thinks he being clever and is full of nothing but !!!!!!.

Section62

rik111 said:

What a load of guff. The OP has already been advised by the Councils legal team and and taken independent legal advice why are you trying to cast doubt on what far more expert opinions are telling him ? The maintenance guy is just a jumped up little numpty who thinks he being clever and is full of nothing but !!!!!!.

Primarily, because the council's legal advice, as quoted by the OP, does not explain the meaning of "the estate".

If the OP has quoted the legal advice in full then (I'm choosing my words carefully here) I would not have a great deal of confidence that the advice is robust.

Given the complexity of this area of the law then I would have more confidence if the advice started with "I have had the benefit of counsel's opinion...."

Section62

User_220321 said:

At this stage, it is for the highways to act and stop someone attempting instructions on a public highway.

I'm not sure it is.  Has the council told you they will do so?

On the face of it you have a private dispute between yourself, the freeholder and the Management Co.  I'm doubtful your situation falls within S130 and I'm trying to think of any other provision which enables the council to intervene in a private dispute of this nature on your behalf.

They have already provided you with their legal advice (which is in itself unusual) and I fear that them taking further action on your behalf might be ultra vires.  Hopefully they have a solicitor who is giving careful thought to the possible consequences.

User_220321 said:

I also feel like the freeholder who co-signed a letter originally stating that the adoption of the roads meant the roads were no longer areas of the estate, therefore no longer applicable under terms of the lease, should now step in.

For clarity, I believe you said the freeholder is not the original developer?

Does the Management Co's involvement in the development pre-date the ownership by the current freeholder?  Is it possible the Management Co know something about the covenant(s) that the freeholder doesn't?

User_220321

Section62 said:

I feel like this is getting into a very in depth conversation about it and whilst I appreciate your opinions, the post is to ask whether anyone has been in this situation themselves. Thanks.