Restrictive Covenants - parking on a local highway

Bigwhitevanman

I agree, it just needs some common sense applying.
ive been reading about, “what is an estate road” and “what is road adoption”
just to quote an answer i found on a council website
Q: What is road adoption?
A: Road adoption is a process where a road in private ownership becomes a public road, which is then managed and maintained by the County Council, as part of the public highway.

key word here “managed“ meaning nothing to do anymore with a management company or anyone else for that matter, leading me to believe that the highways authorities stance is correct.
Seems to make sense to me

Ditzy_Mitzy

Section62 said:

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.

No hostility is intended, of course, but you are yet to supply a single shred of evidence supporting your argument.  A brief, well written precis of the Khodari case appears here: Simmons & Simmons | Section 106 agreements cannot set parking permit restrictions (simmons-simmons.com)
The conclusion drawn is that authorities in Greater London may have the authority to restrict issuance of parking permits.  Authorities outside Greater London are unlikely to have such authority, as they do not come under the auspices of the Greater London Council act.  
The OP, to our knowledge, does not live in Greater London.  More pertinently she does not live in an area with permit controlled parking.  She lives on a plain old public highway.  The issue here is that a private individual is trying to impose parking restrictions on a public highway.  He cannot.  Local authorities, as relevant to the Khodari case, can by means of the creation of Traffic Regulation Orders and the like.  

Section62

Ditzy_Mitzy said:

No hostility is intended, of course, but you are yet to supply a single shred of evidence supporting your argument.  A brief, well written precis of the Khodari case appears here: Simmons & Simmons | Section 106 agreements cannot set parking permit restrictions (simmons-simmons.com)
The conclusion drawn is that authorities in Greater London may have the authority to restrict issuance of parking permits.  Authorities outside Greater London are unlikely to have such authority, as they do not come under the auspices of the Greater London Council act.  The OP, to our knowledge, does not live in Greater London.  More pertinently she does not live in an area with permit controlled parking.  She lives on a plain old public highway.

I think you have misunderstood the legal point.  This element of the Khodari case breaks down into two issues - (a) The ability of a planning authority to impose an obligation on a developer and (b) The ability of a developer/owner/freeholder to impose an obligation on a lessee/tenant/occupier in relation to their use of public highway.

The second point is summarised in the link you provide -
"to include a covenant in any lease of the additional flats preventing the lessee from applying for a parking permit and entitling the Council to enforce that obligation as a third party."

The first point is not relevant in the OP's case as (presumably) the disputed covenant was not something the developer was obligated to do.  Therefore where the OP lives and whether or not the road has an extant TRO/TMO is irrelevant to the discussion and we don't need to dwell on it.

The second point is that the referred to covenant is between the developer and the lessee - the lessee's obligation is to the developer, with the Council being a third party.

Ditzy_Mitzy said:

The issue here is that a private individual is trying to impose parking restrictions on a public highway.  He cannot.

The Management Co is not just a random private individual trying to impose parking restrictions on the OP.  There is a legal agreement between them and the OP which is binding to a greater or lesser extent (to be determined).  The agreement relates to the OP's occupation and use of the property and "the estate".

The OP has apparently accepted the Management Co's right to restrict parking of the specific vehicle type on the OP's own property (and presumably on other parts of "the estate" - such as the green spaces, parks and ponds).

If your assertion is correct (that an agreement between freeholder/owner and lessee/tenant cannot  impose restrictions on use of a public highway) then the second point of the Khodari case would also fail.  To effect the restriction the lessee/tenant would need to covenant directly with the Council, bypassing the freeholder/owner.  In fact in the early days of car free development some councils took just that approach, but it was cumbersome and difficult to manage as the concept scaled up.

Also, if you are correct, the Appeal Court judges would have made the simple observation that a covenant of the type referred to could have no legal effect because the freeholder/owner "cannot" use a covenant to impose restrictions on the use of a public highway.

There was a time I would have agreed with you - and said that the only way parking on a public highway can be controlled is via an order made by the relevant traffic authority.  However, I was persuaded that wasn't necessarily the case and a complex and grey area of highway law existed. Khodari has helped clarify the picture.

If you (and various others posting here) are correct then there must be a provision or case law that proves the point.  If not, the assertion has to have a similar status to urban myth.

As I've said several times, relying on a general case that somehow public highways are exempt from the effects of covenants is a risky approach to adopt, especially if that case does turn out to be mythical.

In my opinion the answer in this situation is likely to be in the precise wording of the agreements the OP has entered into, and particularly in the meaning of "the estate".

User_220321

Thanks for all your comments. I completely get what you’re saying about the wording. However, if I have it in black and white that all wording of the lease and relevant restrictive covenants have been reviewed by the LA’s legal team and that these roads can no longer be subject to any private restrictions, then I do have confidence in this. I also would like to point out that they are not acting for me in regards to stopping these restrictions going forwards, I would assume this is more to do with what they have to do should they believe someone is attempting instructions on a public highway, whether that be our street or a random main road - not personal to my enquiry. Particularly considering I know of several other residents who have made a similar enquiry. I purely asked from an enquiry point of view as this was advised. 

We do have legal support in place if required, but at this stage, everyone I have consulted cannot see what more evidence we would need than the clearest letter I have ever read from of the LA. 

This thread is more to ask whether anyone has personally experienced this themselves. Thanks.

Alan2020

Sounds like people are confusing things, the local authorities legal team won’t give you legal advice. 

Think of it, if I go and lease a car, which says in it terms not to park on a public highway or if you do so there is a £500 charge, how would the LAs legal team say it’s OK to park that car there. Because if the did and you got that legally valid charge the LA becomes liable for incorrect advice.
People are trying to win points by saying LA said so, the only thing the LA legal team will say is what they can or won’t do. They have nothing to do with your private contracts and covenants you enter into.
One of my vehicles would only be covered by insurance if parked in a locked garage, but legally I can park on the public highway, but my insurance company can withdraw cover and then create all sorts of issues. If I asked the LA legal team how would they know what I signed up to.
The OP should pay for a trusted independent legal adviser of their own.

Nobbie1967

User_220321 said:

Thanks for all your comments. I completely get what you’re saying about the wording. However, if I have it in black and white that all wording of the lease and relevant restrictive covenants have been reviewed by the LA’s legal team and that these roads can no longer be subject to any private restrictions, then I do have confidence in this. I also would like to point out that they are not acting for me in regards to stopping these restrictions going forwards, I would assume this is more to do with what they have to do should they believe someone is attempting instructions on a public highway, whether that be our street or a random main road - not personal to my enquiry. Particularly considering I know of several other residents who have made a similar enquiry. I purely asked from an enquiry point of view as this was advised. 

We do have legal support in place if required, but at this stage, everyone I have consulted cannot see what more evidence we would need than the clearest letter I have ever read from of the LA. 

This thread is more to ask whether anyone has personally experienced this themselves. Thanks.

Might it be possible to get a copy of the legal advice from the council using an FOI request? Might be useful to send to the estate management to show the legal backing for your stance.

Alan2020

Also I just realised OP is talking of the road being subject to a covenant. I don’t think it’s the road, but it is the successor to the title or their agents, that is OP and family etc subject to not parking there. The LA legal team is just saying their point of view. If you think of it the estate isn’t worried about tradesmen coming to repair in their vans, they just don’t want the residents to use it as a free commercial vehicle car park. 

HampshireH

Alan2020 said:

Also I just realised OP is talking of the road being subject to a covenant. I don’t think it’s the road, but it is the successor to the title or their agents, that is OP and family etc subject to not parking there. The LA legal team is just saying their point of view. If you think of it the estate isn’t worried about tradesmen coming to repair in their vans, they just don’t want the residents to use it as a free commercial vehicle car park. 

Yet the resident writing the letter as well as others can....

OP appears to be being singled out

Marvel1

@Section62 Is it ok for the person sending these letters not to park a commercial vehicle but they doing it themselves?

Section62

HampshireH said:

Yet the resident writing the letter as well as others can....

OP appears to be being singled out

Agreed.  Which is why I think the OP's issue has more to do with the fairness of the ManCo's actions, and legitimacy within the terms of the lease, rather than any general principle of law relating to restrictions on use of the public highway.

In essence it is comparable to the situation where the management co have refused permission for someone to keep a cat due to a 'no pets' rule, but the injured party is aware that other leaseholders have got dogs and no action is being taken against them.

Unless you can prove there is a law that prevents pet discrimination, or you can show that the lease contains no such restriction, then the available options are limited (and typically, very expensive).

Much of this thread has been taken up with people trying to assert the equivalent that nobody can stop you owning a cat - that everyone has the right to keep a pet at home.

If the elusive law that grants that "right" cannot be identified then it just becomes a dead-end argument.

The way out of the problem - as I've already said - is to find out exactly what the legal agreements say, and whether the Management Co has the power they seem to think they have - in the specific circumstances of the OP's situation (not some hypothetical generalised case).

Marvel1 said:

@Section62 Is it ok for the person sending these letters not to park a commercial vehicle but they doing it themselves?

I'm not a lawyer, but as I've already said, in my view it would depend on the exact wording of the agreements under which they operate as the Management Co.  It is plausible to have an exemption put in so they are not in breach of the covenants on their own property if the commercial vehicle is being kept for the purpose of maintenance of "the estate".

Logically, the Maintenance Co may need to drive (and park) a vehicle on areas of "the estate" such as the greenspaces and parks - which as a property owner they would appear (from the information the OP has shared) not to be allowed to do.  It wouldn't make sense to have a Management Co prevented from efficiently managing "the estate" because covenants affecting them personally stopped them from doing their job. But that is a guess, they could equally just be turning a blind eye to their own contraventions.