Smith v Garrard [2004] EWCA Civ 1655 (17 November 2004)

Smith v Garrard [2004] EWCA Civ 1655 (17 November 2004)

The restriction in paragraph 10 of the Fourth Schedule is not an absolute prohibition on parking but is to be construed as a restriction against parking vehicles which would interfere with the exercise of rights of way. The words 'over which other persons have rights of way' qualify the restriction, and the purpose is to secure the use and enjoyment of rights of way, not to impose an absolute ban on parking.

Citation
[2004] EWCA Civ 1655
Parties
Claimant/appellant: Martin Smith; Defendant/respondent: Jeanne Garrard
Jurisdiction
England and Wales
Judgment Date
17 November 2004
Procedural Posture
Civil Appeal / Appeal From County Court Judgment
Outcome
Appeal dismissed
Legal Topics
Restrictive Covenants, Easements, Interpretation of Deeds, Injunctions, Damages
Property Law Land Law Restrictive Covenants Easements Interpretation of Deeds Injunctions Damages

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Parties

Martin Smith

Claimant/appellant

Jeanne Garrard

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From County Court Judgment

Legal Issues

  1. 1 Whether the covenant in paragraph 10 of the Fourth Schedule to the 1997 transfer prohibits all parking or only parking that obstructs rights of way
  2. 2 Whether an injunction should be granted to restrain parking on the roadway

Ratio Decidendi

The restriction in paragraph 10 of the Fourth Schedule is not an absolute prohibition on parking but is to be construed as a restriction against parking vehicles which would interfere with the exercise of rights of way. The words 'over which other persons have rights of way' qualify the restriction, and the purpose is to secure the use and enjoyment of rights of way, not to impose an absolute ban on parking.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs assessed in the sum of £4,817.50 plus VAT