Jessica Piper-Thompson, Solicitor and Head of Property Litigation, Wessex Region discusses the latest case law arising from Rights of Way Disputes
Solicitor - Head of Property Litigation - South West
The case of Winterburn v Bennett  EWCA Civ 482 raised an issue as to the steps which a landowner must take to prevent others using the land, without permission, from acquiring rights over the land.
The Winterburns own and run a fish and chip shop which is next to a privately owned car park. They have run the chip shop since 1987. Up until 2012, when they were prevented from doing so, suppliers would park on the car park for as long as it took to make their deliveries to the chip shop. The car park was also used by the chip shop’s customers.
The car park, together with the club house on the far side of it, was owned by the Conservative Club Association until 2010 when it was purchased by the Bennetts.
The Association put signs in the window of the club house and on a wall fronting the car park, stating that the car park was private and was for the use of patrons of the club house only. The sign on the wall was in place until the wall was demolished in 2007. The steward of the Association had told the Winterburns, their suppliers and customers that they had no right to park on the car park; however neither the signs nor the steward’s assertions deterred them.
The Bennetts rented out the car park and club house in 2012. Their tenant obstructed access to the car park from the road, which the Winterburns were not happy about.
The Winterburns claimed that they had acquired what is known as a ‘prescriptive right of way’ for the benefit of the chip shop, over part of the car park, by virtue of the fact that they had used it for 20 years or more, as of right (i.e. without force, secrecy or permission).
The Winterburns’ did not have permission to use the car park and they had not done so secretly. In this case, it was the element of ‘without force’ that was in issue. The Winterburns would have to demonstrate that their use was not ‘under protest’. Did the circumstances suggest that the owner of the car park objected, and continued to object, to the unlawful use by the Winterburns? Was it necessary for the owner of the car park to take steps, through physical means or legal proceedings, to prevent the Winterburns from using the car park in the way they did? Or, were the signs, which stated that the car park was private property, enough to make the Winterburns’ use of it contentious?
This may sound as though it should be fairly straight forward, but it was not. The case was first heard by the First-tier Tribunal (Property Chamber), who held that the Winterburns had established their claim to parking rights, then that decision was overturned by the Upper Tribunal (Tax and Chancery Chamber), who’s decision was upheld by the Court of Appeal.
The Court of Appeal decided that signs displayed on land indicating that the land is for private use only are sufficient to prevent someone from claiming a prescriptive right over the land, even where the signs are completely ignored for the prescriptive period and no steps are taken by the landowners to enforce their rights.
The Court found that it was not necessary for the owners, having made their protest clear, to take further steps or to be put to the time, expense and trouble of legal proceedings.
Lord Justice David Richards acknowledged that “[t]here is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs. The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others.”
If you own land or property that may be accessible to others and which others’ use of is difficult to control or police, it is worth giving careful consideration to putting up some well-placed, carefully worded signs in prominent positions to make it clear that your property is private and is not to be used by others. Such a straightforward step might save you from inadvertently allowing others to acquire rights over your land, by virtue of long user (i.e. 20 years or more).
If you are concerned that others have been using your land or property unlawfully over a period of time, avoid the trap created by complacency and seek advice as to whether you can prevent them from acquiring prescriptive rights over the land.
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