P’s land could only be accessed on foot though D’s land, meaning P’s car had to be parked away from his land. D’s predecessor had granted P’s predecessor a right of access for both pedestrians and vehicles. Although vehicles could not access P’s land, P claimed a right to park his vehicles on D’s land before progressing to his own. HL upheld P’s right to park there since, in Scottish law, the right of parking can be seen as ancillary to an easement of vehicular access. There was (obiter) discussion on when a right would exclude the servient landowner to such a degree that it could not be an easement
Lord Hope: The test of whether a claimed right is to operate as ancillary to the main easement is whether it was necessary for the comfortable use and enjoyment of the servitude. The same test is used for terms of the easement that need to be implied. In this case it was established since there would be great inconvenience if it were not allowed and it would not create too great a burden for the servient land owners (D).
Lord Scott: Unless the dominant owner seemed to be claiming exclusive possession & control then relatively minor uses of the land wouldn’t be fatal to the easement, e.g. storing things in a garage where the servient owner keeps the only keys to the garage (explains apparently conflicting decisions in Wright v Macadam & Grigsby v Melville, where P had his own access to the cellar. He thus says that where the servient landowner retains possession and control (subject to reasonable exercise of the right in question) then the easement doesn’t exclude the servient landowner.
Lord Neuberger: He disagrees with Lord Scott’s suggested test for when a right excessively excludes the servient landowner from the benefit of his land: he says that if a right to park a car in a parking space = an easement, it would be inconsistent to say that the right to store goods in a space is not an easement. If the latter case is accepted then occupational (contractual) licences would become rights in rem, undermining the rule that they are not (see notes on licences).
NB All lords agreed that there was no limit on new types of easements that could be created. Also they all agreed that the mere consequence that it would limit the servient owner’s ability to use part of his land was not enough to exclude the ancillary right. Lord Scott noted that in English law there is a limit to how far the servient owner’s use can be restricted, but that was not crossed in this case. Also Lords Scott, Rodger and Neuberger recognised the possibility of a free-standing servitude of parking.