Multiple CCJs decided in default - set asides and defences

AngryWatermelon123

I was wondering if anyone is able to confirm or infirm the following:

I was confronted with the statement that a right of way (on the premises of a leasehold property such as a flat) doesn't necessarily mean a right to park however, I found the following and wanted to include it in my defence: 

The grant of a right of way is also the grant of such ancillary rights that are reasonably necessary to allow the right to be exercised or enjoyed aka if I have the right to pass through the premises to reach a destination (my home) I have the right to stop/park as well.

This is supported by Bulstrode v Lambert in 1953.

https://www.hughes-paddison.co.uk/site/blog/property-litigation-blog/rights-of-way-and-perpetual-motion#:~:text=The Court will readily accept,short shrift by the Court 

Le_Kirk

You don't have the right to park, which is defined as leaving the car, locking it up and going elsewhere.  However, you do have the right to load and unload which will take time and mean the car is stopped.

Coupon-mad

AngryWatermelon123 said:

I was wondering if anyone is able to confirm or infirm the following:

I was confronted with the statement that a right of way (on the premises of a leasehold property such as a flat) doesn't necessarily mean a right to park however, I found the following and wanted to include it in my defence: 

The grant of a right of way is also the grant of such ancillary rights that are reasonably necessary to allow the right to be exercised or enjoyed aka if I have the right to pass through the premises to reach a destination (my home) I have the right to stop/park as well.

This is supported by Bulstrode v Lambert in 1953.

https://www.hughes-paddison.co.uk/site/blog/property-litigation-blog/rights-of-way-and-perpetual-motion#:~:text=The Court will readily accept,short shrift by the Court 

Yes - His Honour Judge Harris QC's words at #15 and #16 in the Jopson v HomeGuard parking case Appeal relied on that case:

''15  The position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728.  The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.  

Upjohn J said at 332:  “I am quite satisfied that on its true construction the plaintiff is entitled to bring on this yard…vehicles and to transport from those vehicles…furniture or other chattels…into the auction mart.” He continued, having dealt with some geographical questions:

“Is he entitled to halt on the yard while the vans…are unloading, an operation which takes a half-hour to an hour? If the right which the plaintiff has under the deed of covenant does not include that right, then the right-of-way is virtually useless to him… The whole object of the reservation is for the purpose of…obtaining access… The plaintiff can…bring goods in vehicles to his auction room. If he is entitled to do that, then he must of necessity be entitled to unload them… The right…may be described as ancillary to the easement, because without the right he cannot substantially enjoy that which has been reserved to him.” 

16  This authority seems to me to be reasonably clear and a matter of common sense and apposite. The respondent did not argue that it was wrongly decided or has been overruled.''

Also Lord Neuberger (Supreme Court) defined parking in his comments in Moncrieff:

https://forums.moneysavingexpert.com/discussion/comment/71877568#Comment_71877568

Persuasive opinion as he is one of the UK's top Judges.  That link also gives you McClymont which is another authority.

AngryWatermelon123

Sorry, I have another question:

Gladstones have obtained a copy of my lease and have brought forward the fact that in the third schedule, the lease mentions that the lesee should observe all regulations made by the lessor from time to time relating to the parking of vehicles (this is preceeded by saying not to cause any obstruction, in the same clause)

This is of course in opposition with the fact that the lease mentions my ownership of the parking space, my right of way and to peaceful enjoyment. 

There is still no mention of permits, a third party ppc, paying invoices etc.

Of course by using that piece of evidence, the whole process becomes a permit displaying excercise regardless of who has the right to use the car park or not.

What do you guys make of this?

Many thanks in advance!

Coupon-mad

Doesn't it say 'reasonable regulations'?

It is not reasonable for the lessor to unilaterally impose a scheme allowing a third party to run a business in bays exclusively owned by leaseholders; especially when that regime has the wholly unreasonable effect of potentially charging the owner of the bay £100 per day.

AngryWatermelon123

No, it does not say reasonable. I'm guessing unreasonable agreements are OK?

This doesn't change the fact that I have several other rights granted by that lease that have been infringed upon. 

B789

But has your lessor made any "regulations"?

AngryWatermelon123

B789 said:

But has your lessor made any "regulations"?

No, of course not. The PPC has, claiming to be an agent of the landlord. They were in place before I moved in but as far as the lease is concerned, for someone to become an agent of the landlord, residents need to be given adequate notice (unless in an emergency) and of course they need to agree.

It is absurd to pay fines for the residents car park while being a resident, especially in your own bay. If that "parking regulations" clause would translate to third party imposed regulations and would override my ownership of the space and my right of way, then why do I have rights in the lease to begin with?

I'm just trying to gauge how a judge would see it...

Coupon-mad

I'm guessing unreasonable agreements are OK?

No. There's a law against that!

Consumer Rights Act 2015

Terms snd consumer notices MUST be fair.

AngryWatermelon123

Coupon-mad said:

I'm guessing unreasonable agreements are OK?

No. There's a law against that!

Consumer Rights Act 2015

Terms snd consumer notices MUST be fair.

Thank you, I will slot that into my defences...

This is becoming absurd. 

Hopefully the judge will see that a resident should be able to park in their residential car park