Restrictive Covenants - parking on a local highway

Alan2020

User_220321 said:

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. 

Thanks, I see, its a management fee.  Not sure this has anything to do with the parking then.  

Alan2020

Jumblebumble said:

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?

Of course not, you are confusing two things, just because you are permitted to park doesn't mean you can break another law.  Just because you have have a license and insured/taxed/MOTed vehicle you are legally driving, doesn't give you the right to say run over a police officer asking you to stop.
Legal  + Legal  = Legal
Legal + Illegal = Not Legal
So the covenant may give you legal rights to park yet the double yellows may withdraw this right.
This is why despite the fact you are married and if your partner doesn't give consent it is rape, and some people just don't get that the illegal act would always void anything legal.

User_220321

Alan2020 said:

User_220321 said:

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. 

Thanks, I see, its a management fee.  Not sure this has anything to do with the parking then.  

It has everything to do with parking as the charge is for writing a letter to inform us of a breach of the lease (commercial vehicle parking)... when actually the letters are null and void. He may as well write to the postman and charge him for parking a van on here everyday. It’s a highway, same rules for all surely - including his own commercial vehicle remember.

Section62

Ditzy_Mitzy said:

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 relevance is that control of the use of a public highway by an individual (the occupier of a property) was to be effected through the use of a deed made between the "owners" and lessees of the property. (Para 23)

It is analogous to the OP's situation because in both cases a private agreement between two parties, entered into as part of a property transaction, are being used in an attempt to regulate what one party can/cannot do in another place (the public highway).

The judges found that "if the obligations about parking permits fall within section 16 they will be legally valid" (Para 38)

I believe this demonstrates the assertion that covenants have no effect on the public highway and/or adoption automatically negates the effect of covenants is incorrect.  If the assertion were true, then the judgement would have pointed out that a private agreement of this type cannot contravene "general highway rights".

Ditzy_Mitzy said:

The section of highway the OP refers to is not permit controlled, for one,

Agreed.  However, the issue is the restriction of public 'rights' through private agreement.  Being told you can't park a particular type of vehicle, or being told you cannot apply for a parking permit are sufficiently analogous in this situation.

Ditzy_Mitzy said:

and, more pertinently, the case did not involve a private entity trying to contravene general highway rights by use of a covenant.  

This is exactly what was being done (see Para 23), albeit in Khodari the developer would be doing so as a condition of a planning consent, and the meaning of "general highway rights" needs some clarification.

Ditzy_Mitzy said:

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.  

I'm not sure where you found that.  RBKC's cross-appeal was allowed on this point (Para 45).  The judgement was not that the covenants were unlawful, but that use of a S106 agreement to require them was wrong.  Other powers held by RBKC overcame the S106 deficiency. (Para 40)

edgex

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.

Section62

User_220321 said:

It’s a highway, same rules for all surely

No.

This is the fundamental point I've been trying to make here - case law suggests a covenant can impose a more restrictive set of 'rules' than would apply to the general public.

The thing you need to resolve is whether the specific covenant you have agreed to does that in the way the maintenance/management person thinks it does.

The starting point of that process is in the definition of "the estate".

User_220321 said:

- including his own commercial vehicle remember.

That would depend on the specific wording of the agreement they have with the freeholder.

Section62

User_220321 said:

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.

To be clear, this isn't what I've been saying.  I've been saying the opposite.  As such, relying on it as your main point of argument is - in my personal opinion - very risky.

Alan2020

User_220321 said:

It has everything to do with parking as the charge is for writing a letter to inform us of a breach of the lease (commercial vehicle parking)... when actually the letters are null and void. He may as well write to the postman and charge him for parking a van on here everyday. It’s a highway, same rules for all surely - including his own commercial vehicle remember.

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!

Section62

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?

User_220321

I’m not relying on this point that you mention, I am not of a legal background, therefore I am relying on the information provided by the freeholder and by the LA. This information is telling me that the management company cannot pursue these charges and both say that this is due to the road being adopted. My independent legal advice also confirms this. It is not my personal opinion.