On 17 October 2007 the House of Lords decided the case of Moncrieff v Jamieson [2007] UKHL 42 (at http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/jamie-1.htm ).  The case involved a dispute about access to a property known as “Da Store” to the east of Sandsound Voe, Shetland.  This property was some way from the public road and required access to the road, attained by a servitude right of vehicular and pedestrian access over a neighbour’s property.  However, the owners of “Da Store” had no means of getting a car onto their property.  It was accepted that they could load and unload on the neighbouring plot, but the Lords had to consider whether the right of access conferred with it a right of car parking.  The bench comprised the two Scottish Law Lords (Lords Hope and Rodger), the remainder from England (Lords Scott, Mance, and Neuberger).  It was held that in the “particular and unusual circumstances” (Lord Hope at para 36, see also Lord Scott at para 63, Lord Rodger at para 98 and Lord Neuberger at para 124) of the case the right to park on the neighbouring property was ancillary to the right of access held by the owners of “Da Store”.  Members of the court were also ready to recognise the possibility of an outright servitude of parking.

There are a number of other noteworthy elements in the case.  First, while the Scottish judges provide a detailed analysis of Scottish authorities and (in Lord Rodger’s speech) a sojourn in Rome to consider Maecianus and his attempts to provide a hut for his animals exercising a right of pasture on neighbouring property (para 75), the English judges make little reference to Scottish authority.  Lord Scott cites eleven cases and as many Nigerian cases (AG of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599) as Scottish ones (Dyce v Hay (1852) 1 Macq 305 – which happens to underpin an area of the English law of easements).  Lord Neuberger cites sixteen cases including more Australian cases (three) than Scottish reports (Dyce is cited as is Ewart v Cochrane (1861) 4 Macq 117). 

Second, Lord Rodger’s speech contains detailed reference to an unreported House of Lords case from 1967.  The case, Chalmers Property Investment Co Ltd v Robson is discussed at paras 77 – 82 of his speech and was a judgment of a bench including Lords Reid and Guest.  The case was only reported at Outer House level (1965 SLT 381), the later First Division decision (in 1966) also remaining unreported.  Contacting property law academics in Scotland it is apparent that the decision of the House of Lords in this case was unknown to the community.  While the leading modern textbook on servitudes (Cusine and Paisley, Servitudes and Rights of Way (1998)) benefited from the researches of the authors in the sheriff courts of Scotland, digging out numerous unreported decisions to illustrate points, it appears that time could have been profitably spent at Westminster on the hunt for unreported House of Lords cases.

Finally, Scotland’s flat-dwellers will note with regret some robust remarks in Lord Rodger’s speech denying that they have any right to park on their neighbours’ property:

“What matters for present purposes, however, is that, unless by specific agreement, the seller of a house does not warrant that it is suitable for occupation by any particular type of person who he foresees may want to buy the property. If, for instance, he is selling a flat at the top of a four-storey block with no lift, he gives no warranty that it will suit a couple with young children. So parents of young children have only themselves to blame if they buy the flat and then find that they cannot stand the hassle of hauling a baby, a buggy, a fractious older child, a dog and shopping up four flights of stairs. Similarly, an elderly couple cannot complain if they buy a house at the top of a steep hill and then find that they cannot manage the walk up from the bus stop.  Houses or flats which are suitable at one stage in our lives may be quite unsuitable at a different stage. If a house turns out to be unsuitable, we cannot blame the seller. It is no business of his. Our only remedy is to move to somewhere that is suitable.” (para 68)

And again, just in case you missed the point first time round:

“When assessing the rival contentions of the parties, I find it hard to ignore some very ordinary facts of modern life. Especially in cities, there are many flats or houses without any adjacent land on which cars can be parked. That feature is often a significant factor for people when deciding whether to buy the flats or houses and, if so, at what price.  Those who own such properties can get to them by car, but are very familiar with the need to drop off their shopping and passengers before trekking off to search for a resident’s parking space some streets away.  Those with young children and no-one to watch them have to take the children to the parking place and then trail them back home, whether up or down a steep hill, whether through icy rain or in blistering sun. These are simply the inevitable everyday consequences of the owners’ decision to buy the house or flat in question. If they find the situation intolerable, they have only themselves to blame. If they can afford to move, they can try to find another suitable house or flat which has parking.  Otherwise, they simply have to put up with their predicament.” (para 85)