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Law Lords uphold parking servitude right

23 October 2007

A servitude right of parking has been finally recognised in Scots law with the decision by the House of Lords in Moncrieff v Jamieson.

Five Law Lords last week unanimously upheld the majority of the Inner House, who ruled that James and Alison Moncrieff could park their vehicles at the end of an access road owned by Bruce Jamieson - the closest point a vehicle could come to their house at Sandsound in Shetland, which lies at the foot of a steep escarpment near the foreshore.

The case began in 1998 after Mr Jamieson and his wife began construction of a stone wall to square off their garden and effectively cut off access to the parking area. The Moncrieffs, who had exercised their access and parking right since 1984, obtained an interdict in Lerwick Sheriff Court and defended it through the successsive appeals.

While there were differences of emphasis in the judgments, the Lords accepted that in principle "the fact that the servient proprietor was excluded from part of his property is not necessarily inimical to the existence of a servitude", in Lord Hope of Craighead's words. They went on to hold that in the unusual circumstances of this case, the rights ancillary to the express grant of a right of access in favour of the dominant tenement included a right to park vehicles on the servient tenement, in so far as this was reasonably incidental to the enjoyment of the dominant tenement.

Iain G Mitchell QC, instructed by Brian Inkster of Inksters, Glasgow, who represented the Moncrieffs throughout the case, said: “This case is hugely important for the law of both Scotland and England. Lawyers have been arguing for years over whether there is such a thing as a servitude or easement of parking, and, indeed, in Scotland, it had become received wisdom that the common law would never recognise any new servitudes beyond those which are already recognised.

"In this judgment, the House of Lords has now recognised that there is a servitude of parking in Scotland and an easement of parking in England, and, at the same time, by doing so, the House of Lords has turned the received wisdom on its head.

"The Scottish Parliament recently legislated on the recommendation of the Scottish Law Commission to open up what the Commission thought was a closed list of servitudes by providing for a statutory means of creating servitudes, but in light of this decision, we can see that the legislation may not have been necessary - the common law has once again proved itself to be flexible and adaptable to modern life.  It will be very helpful for people whose cases do not fit within the narrow requirements for the statutory servitudes.”

The full judgment of the House of Lords can be found at http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/jamie-1.htm .