Restrictive Covenants - parking on a local highway

Ditzy_Mitzy

Alan2020 said:

I am at a loss to understand what adopting a road has to do with legal covenants??
Just because the council/highways agreed to maintain your road doesn’t mean they are above the law and can extinguish covenants

I think the OP will loose big time. I might be wrong but please do let others know.

A lot of people get emotional, the reality is the estate owns the freehold of the road and can via the covenant bind the successors to the title regardless of who maintains the road.

People seem to forget even a supermarket car park is publicly available and you will need to have car insurance etc but cannot park a 30ton truck and sod off

Sorry, but no cigar.  Adoption of the road does not necessarily extinguish title to the land, but it does extinguish covenants.  The highway, in essence, flies over the private land.  The Highways Agency owns the 'highway and scrapings', but does not necessarily own the land underneath.  The point is that the highway itself acts like a bridge, in legal terms.  Highway rights apply to the surface, superseding any private covenants or restrictions.  Otherwise any old householder could, citing ownership of the land beneath the road, claim that he has the right to apply ludicrous covenants to the highway and restrict rights of way.  

Section62

Ditzy_Mitzy said:

Sorry, but no cigar.  Adoption of the road does not necessarily extinguish title to the land, but it does extinguish covenants.  The highway, in essence, flies over the private land.  The Highways Agency owns the 'highway and scrapings', but does not necessarily own the land underneath.  The point is that the highway itself acts like a bridge, in legal terms.  Highway rights apply to the surface, superseding any private covenants or restrictions.  Otherwise any old householder could, citing ownership of the land beneath the road, claim that he has the right to apply ludicrous covenants to the highway and restrict rights of way.  

That applies to the areas of land which have now become adopted roads (and presumably now in the ownership of the highway authority).

The issue for the OP is they have agreed to covenants and restrictions in relation to their use of a different area of land.  The adoption of the highways doesn't disturb those, and only affects the covenants if they are constructed in a way where the status of the road is relevant.  The words "the estate" in isolation give wide scope for interpretation.

Section62

ratechaser said:

No, just.... no. It's not that the council/highways have just 'agreed to maintain your road' - on adoption they move from being private property to public highway. And become subject to a different set of rules (or rather laws) entirely.

It is important in getting to grips with the OP's situation to understand that isn't wholly accurate.  The adoption of a highway doesn't create a clean slate of new law applicable to it.  In reality it adds an overlay of new law, and crucially it changes the applicability of existing law.

Neither Highway nor Traffic law has a clear separation between public and private, there are lots of grey areas.  Alan2020's supermarket car park/traffic law is a good example of the overlap.

ratechaser said:

Including statutory rights (and of course restrictions) on parking that no private arrangement could override.

The individual has no statutory right to park a vehicle on a public highway.

ratechaser said:

Just think about it from the other direction - if the council put yellow lines on that adopted road, do you think that the management co could agree with any new residents that they could safely ignore those yellow lines and park at will because it was 'their estate'? How well do you think that would end?

This would be a case of a private permission seeking to override a statutory prohibition, and would fail.

In the OP's case there is an alleged private restriction overlaid on top of statutory restrictions. That can work in some situations, but is a complex area of law.

User_220321

Section62 said:

ratechaser said:

No, just.... no. It's not that the council/highways have just 'agreed to maintain your road' - on adoption they move from being private property to public highway. And become subject to a different set of rules (or rather laws) entirely.

It is important in getting to grips with the OP's situation to understand that isn't wholly accurate.  The adoption of a highway doesn't create a clean slate of new law applicable to it.  In reality it adds an overlay of new law, and crucially it changes the applicability of existing law.

Neither Highway nor Traffic law has a clear separation between public and private, there are lots of grey areas.  Alan2020's supermarket car park/traffic law is a good example of the overlap.

ratechaser said:

Including statutory rights (and of course restrictions) on parking that no private arrangement could override.

The individual has no statutory right to park a vehicle on a public highway.

ratechaser said:

Just think about it from the other direction - if the council put yellow lines on that adopted road, do you think that the management co could agree with any new residents that they could safely ignore those yellow lines and park at will because it was 'their estate'? How well do you think that would end?

This would be a case of a private permission seeking to override a statutory prohibition, and would fail.

In the OP's case there is an alleged private restriction overlaid on top of statutory restrictions. That can work in some situations, but is a complex area of law.

It’s important to remember that I do actually have specific permission to park on this specific road - in writing for the local highway authorities.

It has also been confirmed that an adoption of this type does actually change the laws of said road.  

The way it was described to me was that if he put bollards up to restrict the parking here then the highways would have the right to remove them and charge him for the hassle of doing so. Therefore this is merely a non physical version of someone doing this exact same thing but with threats and charges.

Alan2020

Like I said I don't understand this and following with interest.
One similar thing I noticed in London and some cities in the UK is that on new builds a covenant forbids you from obtaining/parking a vehicle.  This is a superset of what OP has, and it is totally bullet proof, people have bought properties thinking they could ride rough shod over the laws surrounding this and properties like this have come very cheaply - a little digging in shows a condition to planning approval was the imposition of such covenants.
Now, what I see is that people living on the victorian terrace on that street can legally park a car on the publicly owned street with an appropriate council permit, whilst on the very same street, those from the new builds cannot park thanks to a covenant.  This situation is very similar to the OPs.
People are talking of blocking the road and LA removing obstruction, because you have a right to pass over a highway but no one gave anyone the right to park.
I nearly bought one of these properties and on investigation they in effect came with a parking ban on any vehicle and the LA was enforcing this covenant.

davidmcn

Alan2020 said:

Now, what I see is that people living on the victorian terrace on that street can legally park a car on the publicly owned street with an appropriate council permit, whilst on the very same street, those from the new builds cannot park thanks to a covenant.  This situation is very similar to the OPs.

I don't think that's anything to do with covenants, it's more the council just deciding which addresses qualify for a parking permit.

Herbalus

No enforceable covenant will ban you from owning a vehicle. They might very well have a policy that says people in Building X cannot get a parking permit for that area, which makes it a de facto “ban” if there’s nowhere to legally park, but there’s nothing stopping residents there from buying a car and either parking it somewhere else or continually driving round in it (though that defeats the point of buying a place in the building).

User_220321

Alan2020 said:

Like I said I don't understand this and following with interest.
One similar thing I noticed in London and some cities in the UK is that on new builds a covenant forbids you from obtaining/parking a vehicle.  This is a superset of what OP has, and it is totally bullet proof, people have bought properties thinking they could ride rough shod over the laws surrounding this and properties like this have come very cheaply - a little digging in shows a condition to planning approval was the imposition of such covenants.
Now, what I see is that people living on the victorian terrace on that street can legally park a car on the publicly owned street with an appropriate council permit, whilst on the very same street, those from the new builds cannot park thanks to a covenant.  This situation is very similar to the OPs.
People are talking of blocking the road and LA removing obstruction, because you have a right to pass over a highway but no one gave anyone the right to park.
I nearly bought one of these properties and on investigation they in effect came with a parking ban on any vehicle and the LA was enforcing this covenant.

This does sound very specific. However this is not to do with parking in general, it is to do with vehicle type. Everyone parks on these roads already. The question of a right to park is not an issue at all. Actually, many residents would not have anywhere to park at all due to having too many vehicles for their driveway if this was the case. Also this is not a fine for parking there, this is a charge for the managing agent’s time writing a letter. I obviously need these charges removing off the account now. We have the confirmation that we can park and that indeed the adoption process that took place on our estate changed the laws of that road. However, making the agent remove the charges that he has put on through his company is the difficult part. 

Alan2020

davidmcn said:

Alan2020 said:

Now, what I see is that people living on the victorian terrace on that street can legally park a car on the publicly owned street with an appropriate council permit, whilst on the very same street, those from the new builds cannot park thanks to a covenant.  This situation is very similar to the OPs.

I don't think that's anything to do with covenants, it's more the council just deciding which addresses qualify for a parking permit.

They are, you can google and check, those properties (freehold) were cheap and you realise apart from parking in some NCP carpark or private garage you literally cannot park legally.  I think there was a big moan and complain 3-4 years ago, but this is the norm nowadays and loads of properties are like this - that is why I steer clear of some too good to be true new builds

davidmcn

Alan2020 said:

davidmcn said:

Alan2020 said:

Now, what I see is that people living on the victorian terrace on that street can legally park a car on the publicly owned street with an appropriate council permit, whilst on the very same street, those from the new builds cannot park thanks to a covenant.  This situation is very similar to the OPs.

I don't think that's anything to do with covenants, it's more the council just deciding which addresses qualify for a parking permit.

They are, you can google and check, those properties (freehold) were cheap and you realise apart from parking in some NCP carpark or private garage you literally cannot park legally.  I think there was a big moan and complain 3-4 years ago, but this is the norm nowadays and loads of properties are like this - that is why I steer clear of some too good to be true new builds

Yes, I know some developments are designated as "car-free". But I don't see a need for a covenant. If you don't have a parking space on the premises, and the council won't give you a permit to park on the street, what would be the point of a covenant?