Restrictive Covenants - parking on a local highway

Section62

User_220321 said:

The part your missing is that I do actually have specific permission to parking on this specific road - in writing.

No, I'd seen that, and it is one of the things which causes me to have some concerns about the quality of the advice you've been given.  A local highway authority cannot give you "permission" to park on a "specific road".  It isn't within their powers to do so.

The highway authority does have a duty known as "Protection of public rights" (Highways Act S130) and there is case law going back centuries as to what those rights are. However, pertinent to your situation is a relatively recent case (Khodari, 2017) which - although I'm not a lawyer - tends to suggest that a private agreement can impinge negatively on an individual's use of a public highway.  But as I've said already, this is a complex area of law and you really need to make sure you have independent professional legal advice before doing anything risky.

User_220321 said:

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

Adoption changes the legal status of a road, but it doesn't change the laws.

So far in this thread two key arguments have been put forward.  One is that the adoption of the road has made the lease wording "obsolete".  The second is that the wording "including any unadopted estate roads" by default means adopted roads are not covered by the agreement.

I'm still not a lawyer, but those two positions appear to me to be potentially incompatible and create a legal weakness.  If the agreement didn't include the adopted roads then its wording cannot be made "obsolete" by a change in the adoption status of those roads.  And if the agreement did include the adopted roads then it is unsafe to assume the adoption automatically negates the covenants.

The TL;DR is you need to find out exactly what "the estate" means.

User_220321 said:

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.

I completely agree with the first part of that - bollards would probably be an unlawful obstruction of the highway.

But their physical presence means they interfere with the public right to pass and repass, and potentially pose a danger to road users.  The same cannot be said of a legal agreement which seeks to limit the activities of an individual linked to ownership or use of nearby land. So the comparison is flawed.

Section62

davidmcn said:

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?

There are some legal issues with making an order under RTRA1984 which excludes specific individuals from applying for and obtaining a permit.

Some councils have taken the belt and braces approach of using covenants to prevent an owner/occupier from being eligible to obtain a permit, and if they somehow obtain a permit, to require them to give it back within 'x' days.

The legality of doing this via a Section106 has been questioned (Khodari) but the judgement in that case doesn't appear to absolutely rule out the use of covenants in this kind of situation.

See -
R (Khodari) v Royal Borough of Kensington and Chelsea Council and another [2017] EWCA Civ 333

Marvel1

User_220321 said:

Believe me, there has been a vast amount of letters in which we have said we will not be paying and that the roads are adopted. We have provided all evidence discussed above and this is still being pursued by him and the charges are not being removed. His reply was basically that the legal action will now begin. Like you are all saying, it seems so obvious to us but yet as he is ‘pursuing costs based on a legal document’, apparently this cannot be harassment yet. It all seems ridiculous. It appears that the courts may have to decide! 

In that case, everyday do what I advised and get a video/photo of their works van being parked.

User_220321

I will type exact wording of the letter we have been given by the legal department:

“I have had the benefit of reviewing the relevant lease, deed of covenant and the agreement made pursuant to section 38 of the highways act 1980 (along with the associated final certificate). I understand the relevant restrictive covenant to be set out at clause ... of schedule..., concerning the parking of certain vehicles on “the Property or on any part of the estate (including any unadopted Estate Roads)”. I can confirm that on ..... the highway known as .... and adjoining estate roads were dedicated for use by the public as a highway for all classes of user.

The roads in question are not, as a matter of fact, ‘unadopted estate roads’ and consequently Clause .... does not apply to those roads forming the subject of the s38 agreement. For the avoidance of any doubt, both residents and the public at large, have the right to utilise said highway free from private restriction.”

Although yes, they do not say in this letter ‘please do park there’ they do completely rule out private restrictions. 

Ditzy_Mitzy

Section62 said:

User_220321 said:

The part your missing is that I do actually have specific permission to parking on this specific road - in writing.

No, I'd seen that, and it is one of the things which causes me to have some concerns about the quality of the advice you've been given.  A local highway authority cannot give you "permission" to park on a "specific road".  It isn't within their powers to do so.

The highway authority does have a duty known as "Protection of public rights" (Highways Act S130) and there is case law going back centuries as to what those rights are. However, pertinent to your situation is a relatively recent case (Khodari, 2017) which - although I'm not a lawyer - tends to suggest that a private agreement can impinge negatively on an individual's use of a public highway.  But as I've said already, this is a complex area of law and you really need to make sure you have independent professional legal advice before doing anything risky.

User_220321 said:

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

Adoption changes the legal status of a road, but it doesn't change the laws.

So far in this thread two key arguments have been put forward.  One is that the adoption of the road has made the lease wording "obsolete".  The second is that the wording "including any unadopted estate roads" by default means adopted roads are not covered by the agreement.

I'm still not a lawyer, but those two positions appear to me to be potentially incompatible and create a legal weakness.  If the agreement didn't include the adopted roads then its wording cannot be made "obsolete" by a change in the adoption status of those roads.  And if the agreement did include the adopted roads then it is unsafe to assume the adoption automatically negates the covenants.

The TL;DR is you need to find out exactly what "the estate" means.

User_220321 said:

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.

I completely agree with the first part of that - bollards would probably be an unlawful obstruction of the highway.

But their physical presence means they interfere with the public right to pass and repass, and potentially pose a danger to road users.  The same cannot be said of a legal agreement which seeks to limit the activities of an individual linked to ownership or use of nearby land. So the comparison is flawed.

Your proposition doesn't account for the fact that the freeholder, as in the freeholder proper not the management company or maintenance agent, has stated there is no issue with the OP's actions.  The maintenance man is acting unilaterally, without the freeholder's blessing.  

Section62

Ditzy_Mitzy said:

Your proposition doesn't account for the fact that the freeholder, as in the freeholder proper not the management company or maintenance agent, has stated there is no issue with the OP's actions.  The maintenance man is acting unilaterally, without the freeholder's blessing.  

True, but my comments only related to whether or not covenants can apply to a public highway and whether the adoption process affects those covenants.  If the OP is going into battle with the management/maintenance person it is important that the true legal position is understood - both parties in a legal dispute being misinformed doesn't make one of them right.

If the assertions that adoption of the highway negates the covenants is correct then that might be all the OP needs to rely on.  If the assertion is wrong, then the OP needs to look elsewhere for support.

I don't know enough about this area of the law to feel comfortable commenting on it, but I have noticed the OP has hinted that the relationship between the management/maintenance co, the freeholder, and the residents, is not necessarily a happy one. The reference to them being "elected by the residents" has also passed without detailed comment as far as I can see.

I would wonder out loud whether it is possible the freeholder has entered into a form of contract with the management/maintenance person which gives the latter a very high degree of autonomy to carry out 'enforcement' action, such that the freeholder's "blessing" is not required?  Similar to the way a supermarket customer service desk will tell you with a straight face that there is nothing they can do about that parking ticket because it is all dealt with by a private company.

Unless the OP has a copy of any agreement the management/maintenance person has with the freeholder, and could share it with us, we would probably just be playing guessing games here.

User_220321

Elected by the residents before all of this was known and way before my time here and for reasons I cannot go into on a forum, it is very difficult to do anything about. As you say, the one fact the highway negates the covenants is correct so yes this is the main route we would go down. This is the basis of all legal advice we have have obtained. If the freeholder had such an agreement with the managing agent then they wouldn’t have supported our letter and indeed co-signed it to say that the above is correct. I suppose the real reason I am writing on here is to see if anyone has been in this exact situation before where as I’ve said the charges are on our property, despite the management being told by the highways that the simply cannot put private restrictions on this road. It is actually their principal solicitor who is dealing with it so I do have a lot of confidence in their knowledge and experience.

NeilCr

Section62 said:

Ditzy_Mitzy said:

Your proposition doesn't account for the fact that the freeholder, as in the freeholder proper not the management company or maintenance agent, has stated there is no issue with the OP's actions.  The maintenance man is acting unilaterally, without the freeholder's blessing.  

True, but my comments only related to whether or not covenants can apply to a public highway and whether the adoption process affects those covenants.  If the OP is going into battle with the management/maintenance person it is important that the true legal position is understood - both parties in a legal dispute being misinformed doesn't make one of them right.

If the assertions that adoption of the highway negates the covenants is correct then that might be all the OP needs to rely on.  If the assertion is wrong, then the OP needs to look elsewhere for support.

I don't know enough about this area of the law to feel comfortable commenting on it, but I have noticed the OP has hinted that the relationship between the management/maintenance co, the freeholder, and the residents, is not necessarily a happy one. The reference to them being "elected by the residents" has also passed without detailed comment as far as I can see.

I would wonder out loud whether it is possible the freeholder has entered into a form of contract with the management/maintenance person which gives the latter a very high degree of autonomy to carry out 'enforcement' action, such that the freeholder's "blessing" is not required?  Similar to the way a supermarket customer service desk will tell you with a straight face that there is nothing they can do about that parking ticket because it is all dealt with by a private company.

Unless the OP has a copy of any agreement the management/maintenance person has with the freeholder, and could share it with us, we would probably just be playing guessing games here.

As I've said I struggle a bit with the set up here. I guess (!) that, as there is a separate freeholder, the election of residents might have been to some type of committee that liaised with the freeholder on the running of the estate

There should be a contract between MA and freeholder but, without sight of it, as you say, we are guessing about the contents. In general you do give the MA a fair bit of autonomy as it wouldn't be practical to have them asking you what to do every time. Nevertheless, any letters our MA will send out will be for or on behalf of us as a ManCo. I really think that the freeholder is copping out here by saying that as the maintenance company is employed by the MA they can't do anything to stop them. They could instruct the MA to cease the action and they would then have to tell the maintenance company to do the same thing

It's a murky business with quite a lot of nepotism from the story!

Ditzy_Mitzy

User_220321 said:

Elected by the residents before all of this was known and way before my time here and for reasons I cannot go into on a forum, it is very difficult to do anything about. As you say, the one fact the highway negates the covenants is correct so yes this is the main route we would go down. This is the basis of all legal advice we have have obtained. If the freeholder had such an agreement with the managing agent then they wouldn’t have supported our letter and indeed co-signed it to say that the above is correct. I suppose the real reason I am writing on here is to see if anyone has been in this exact situation before where as I’ve said the charges are on our property, despite the management being told by the highways that the simply cannot put private restrictions on this road. It is actually their principal solicitor who is dealing with it so I do have a lot of confidence in their knowledge and experience.

Section62 said:

User_220321 said:

The part your missing is that I do actually have specific permission to parking on this specific road - in writing.

No, I'd seen that, and it is one of the things which causes me to have some concerns about the quality of the advice you've been given.  A local highway authority cannot give you "permission" to park on a "specific road".  It isn't within their powers to do so.

The highway authority does have a duty known as "Protection of public rights" (Highways Act S130) and there is case law going back centuries as to what those rights are. However, pertinent to your situation is a relatively recent case (Khodari, 2017) which - although I'm not a lawyer - tends to suggest that a private agreement can impinge negatively on an individual's use of a public highway.  But as I've said already, this is a complex area of law and you really need to make sure you have independent professional legal advice before doing anything risky.

User_220321 said:

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

Adoption changes the legal status of a road, but it doesn't change the laws.

So far in this thread two key arguments have been put forward.  One is that the adoption of the road has made the lease wording "obsolete".  The second is that the wording "including any unadopted estate roads" by default means adopted roads are not covered by the agreement.

I'm still not a lawyer, but those two positions appear to me to be potentially incompatible and create a legal weakness.  If the agreement didn't include the adopted roads then its wording cannot be made "obsolete" by a change in the adoption status of those roads.  And if the agreement did include the adopted roads then it is unsafe to assume the adoption automatically negates the covenants.

The TL;DR is you need to find out exactly what "the estate" means.

User_220321 said:

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.

I completely agree with the first part of that - bollards would probably be an unlawful obstruction of the highway.

But their physical presence means they interfere with the public right to pass and repass, and potentially pose a danger to road users.  The same cannot be said of a legal agreement which seeks to limit the activities of an individual linked to ownership or use of nearby land. So the comparison is flawed.

Section62 said:

User_220321 said:

The part your missing is that I do actually have specific permission to parking on this specific road - in writing.

No, I'd seen that, and it is one of the things which causes me to have some concerns about the quality of the advice you've been given.  A local highway authority cannot give you "permission" to park on a "specific road".  It isn't within their powers to do so.

The highway authority does have a duty known as "Protection of public rights" (Highways Act S130) and there is case law going back centuries as to what those rights are. However, pertinent to your situation is a relatively recent case (Khodari, 2017) which - although I'm not a lawyer - tends to suggest that a private agreement can impinge negatively on an individual's use of a public highway.  But as I've said already, this is a complex area of law and you really need to make sure you have independent professional legal advice before doing anything risky.

User_220321 said:

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

Adoption changes the legal status of a road, but it doesn't change the laws.

So far in this thread two key arguments have been put forward.  One is that the adoption of the road has made the lease wording "obsolete".  The second is that the wording "including any unadopted estate roads" by default means adopted roads are not covered by the agreement.

I'm still not a lawyer, but those two positions appear to me to be potentially incompatible and create a legal weakness.  If the agreement didn't include the adopted roads then its wording cannot be made "obsolete" by a change in the adoption status of those roads.  And if the agreement did include the adopted roads then it is unsafe to assume the adoption automatically negates the covenants.

The TL;DR is you need to find out exactly what "the estate" means.

User_220321 said:

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.

I completely agree with the first part of that - bollards would probably be an unlawful obstruction of the highway.

But their physical presence means they interfere with the public right to pass and repass, and potentially pose a danger to road users.  The same cannot be said of a legal agreement which seeks to limit the activities of an individual linked to ownership or use of nearby land. So the comparison is flawed.

I've just had a look at R v Khodari (2017) and it does not appear to have any relevance to this particular situation.  The case cited hinged on whether a developer and council had the power to stop residents of Egerton Gardens applying for parking permits.  The section of highway the OP refers to is not permit controlled, for one, and, more pertinently, the case did not involve a private entity trying to contravene general highway rights by use of a covenant.  
The salient point is that anyone already in possession of a council granted parking permit retains the ability to park in Egerton Gardens.  Highway rights have not been affected or reduced.  Sorry.  

Jumblebumble

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

So if the covenant said that you were permitted park your car on any of  the estate roads and then the Council adopted it and painted double yellow lines would you be able to avoid Parking Fines?