|
As the number of vehicles increases each year, so the pressure on parking spaces grows. To what extent can L alter or change the parking arrangements, by introducing new parking regs for Ts? In Montrose Court [2006] the CA gave a green light to an L who wanted to introduce new, restructured, parking regs.
Those regs were valid because they did not reduce the overall right to park, but merely altered the way in which those Ts who were entitled to park could enjoy that right. The key point was that they were ‘for the benefit of all who have the right to park... The restriction of each individual in the exercise of the common right operates for the benefit of all the individuals’. This does,
of course, contrast with the situation in which L tries to reduce the parking rights (eg by reducing the number of parking spaces). As another illustration, consider the recent case of the L of an industrial estate comprising 87 units, all on 999-year leases. All lessees were given the right ‘to use the car parks on the estate’ and all covenanted ‘to comply with and observe all regulations’ which L might make. But, a large number of lessees operated car repair businesses, and therefore they used the car parking spaces to store vehicles. After numerous complaints and meetings, L introduced a revised car parking space which restricted overnight parking, and imposed parking charges; that scheme was approved by the vast majority of lessees, although virtually all the car repair businesses opposed the changes. In the High Court it was held that the changes were unreasonable (largely because
no proper research had been done as to how to calculate the parking fees), but the CA took a far more robust view. In its view, the new regulations were either reasonable or not, and it did not matter how the fees had been calculated (provided they were reasonable). The key point was the finding by the CA that the new parking scheme could only be unreasonable if the decision to introduce it was not one that a reasonable management company could have adopted in the circumstances. The burden of proof was on the lessees to show it was unreasonable (not on L to show it was reasonable).
The CA has very much adopted a broad-brush approach, and a T who wants to oppose parking charges will have to show that the new system is one that no reasonable management company could have introduced. As a follow on from that, when providing a client with a written commentary on lease provisions, it may be worth making the point that current parking arrangements on communal/estate property cannot necessarily be regarded as fixed for the long term (and that L might well be legally entitled to introduce a different system in the future). A client whose business requires an unusual number of parking spaces might be grateful for that word of warning! Shah v Colvia [2008] EWCA Civ 195. © Practical Lawyer
|
|
May 2008 |
