Prohibitory notices displayed in a car park had sufficed to prevent users who habitually ignored them from acquiring prescriptive rights to park
It is possible to acquire prescriptive rights over one piece of land for the benefit of another if the user can show uninterrupted use “as of right” for a period of not less than 20 years. User is not “as of right” if the user is forcible, secret or permissive. Use may be forcible if a person seeking to establish prescriptive rights knows that the owner of the land that he is using objects to the use that is being made of it, since this renders the user contentious.
What is the position if users repeatedly ignore “keep out” signs and verbal warnings that they are trespassing? Winterburn v Bennett [2015] UKUT 59 (TCC) concerned a claim by the owner of a fish and chip shop to prescriptive rights of way and parking for himself, his customers and licensees. The car park over which the rights were claimed belonged to a club, which had always displayed a notice, in plain sight of anyone entering the car parking area, saying “Private car park. For the use of club patrons only. By order of the committee”. However, the notice was ignored, as were protests from club representatives who complained to the proprietor of the fish and chip shop from time to time.
Had the club done enough to indicate that the use of the car park was contentious? Or should it have taken additional steps to make its position clear, such as fixing stickers to cars, closing the gates from time to time, or writing formal letters of complaint to the owner of the fish and chip shop? Had the trespasses matured into fully fledged prescriptive rights, because the notice alone was not enough and had been utterly ignored?
It is possible to acquire prescriptive rights over one piece of land for the benefit of another if the user can show uninterrupted use “as of right” for a period of not less than 20 years. User is not “as of right” if the user is forcible, secret or permissive. Use may be forcible if a person seeking to establish prescriptive rights knows that the owner of the land that he is using objects to the use that is being made of it, since this renders the user contentious.
What is the position if users repeatedly ignore “keep out” signs and verbal warnings that they are trespassing? Winterburn v Bennett [2015] UKUT 59 (TCC) concerned a claim by the owner of a fish and chip shop to prescriptive rights of way and parking for himself, his customers and licensees. The car park over which the rights were claimed belonged to a club, which had always displayed a notice, in plain sight of anyone entering the car parking area, saying “Private car park. For the use of club patrons only. By order of the committee”. However, the notice was ignored, as were protests from club representatives who complained to the proprietor of the fish and chip shop from time to time.
Had the club done enough to indicate that the use of the car park was contentious? Or should it have taken additional steps to make its position clear, such as fixing stickers to cars, closing the gates from time to time, or writing formal letters of complaint to the owner of the fish and chip shop? Had the trespasses matured into fully fledged prescriptive rights, because the notice alone was not enough and had been utterly ignored?
It had previously been suggested that user is contentious “when a servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user”: Smith v Brudenell-Bruce [2002] 2 P&CR 51. Did this mean that the club should have given its objections added strength, through the use of physical obstructions or by taking legal action?
The Upper Tribunal took the view that this was unnecessary. The judge noted that, in Betterment Properties (Weymouth) Ltd v Taylor [2012] EWCA Civ 250, the Court of Appeal rejected the submission that the landowners should have taken legal proceedings in order to make their position known; it was enough that the landowners had taken all reasonable steps to bring their objection to the attention of users through the use of notices. Consequently, the erection of a sign, which was always on display, stating that the car park was “for the use of patrons only” had sufficed to make it clear that the club objected to other people parking there.
Therefore, the use had been contentious – and it had been unnecessary for the club to write any letters or to take any additional action in this case. However, the club’s sign made no reference to access on foot and was directed solely to parking. Consequently, the owner of the fish and chip shop had acquired pedestrian rights of way over the car park for the benefit of himself, his customers and licensees.
Landowners will welcome the decision, but would be well advised to err on the side of caution, pending further consideration of the case by the Court of Appeal.
Allyson Colby is a property law consultant
