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Winterburn & Anor v Bennett & Anor [2016]

May 29, 2016

In Winterburn & Anor v Bennett & Anor [2016] EWCA Civ 482 (25 May 2016) this matter came before Lady Justice Sharp, Lord Justice David Richards and Mr Justice Moylan and was heard in the Court of Appeal and the Judgment was delivered by Lord Justice David Richards with which Lady Justice Sharp and Mr Justice Moylan agreed. The Appellants claimed that they had acquired prescription rights for themselves and others over land belonging to the Respondents due to having used the land to park vehicles over many years.  The First Tier Tribunal (Property Chamber) had held that they had acquired the parking rights but the Upper Tribunal (Tax and Chancery Chamber) permitted an appeal on that decision to this Court.

The disputed land was made up of part of a car park which had been owned by the Conservative Club until 2010. The Appellants ran a fish and chip shop, which they also owned, adjacent to the car park entrance. The clubhouse and carpark were used by the Conservative Club until they sold it to the Respondents in 2010. In May 2012 the club building and car park were let out to a tenant who blocked access to the car park, stopping cars and vehicles from entering from the road but, allowing pedestrian access.

Lord Justice David Richards clarified in his judgment that this appeal did not concern pedestrian access but the parking of cars and vehicles on the land in dispute.

The Appellants had taken a 20 year lease of the premises in 1997, bought the freehold in 2007 and had ran the fish and chip shop until 2012.  During that time suppliers had, several times a week, parked on the disputed land making deliveries, likewise, customers had used the land to park whilst buying fish and chips.

Lord Justice Richards observed that using the car park had not interfered with the Conservative Club but on 12 to 15 occasions during a period of seven years, the Club steward had reiterated that the Club owned the land and that the suppliers and customers had no right to park there or obstruct the use of the Club by its members.

He noted that a sign was affixed to the wall at the side of the entrance to the car park which the Club had put up with the words “Private car park. For the use of Club patrons only. By order of the Committee” which the First-Tier Tribunal had found to be clearly seen by anyone entering the disputed land on foot or by vehicle and the customers of the shop. There was also a sign in the Club window which was clearly seen and he observed that the signs had not stopped the suppliers and customers parking on the land.

Lord Justice Richards referred to the issue.  Had the signs displayed been sufficient to stop the Appellants from acquiring a right to use the disputed land for themselves, their suppliers and the customers of their shop or had the car park owners accepted the situation that the Appellants had the right to use the car park notwithstanding the signs being displayed.

The Appellants claim was that their right to park their cars and vehicles, their suppliers and customers’ cars and vehicles was based

  • “on acquisition by prescription by “lost modern grant”, the requirements of which are that the Appellants must demonstrate that they have had 20 years of uninterrupted user “as of right”, that is to say without force, without secrecy and without permission”.

In this case, the issue related to the element of “without force”. The Club knew about the parking on the disputed land, later on the Respondents knew and, that permission for parking had not been granted. He referred to the term “without force” where the person must demonstrate that “his user was not contentious or allowed only under protest” and that this appeal concerned what would be considered as protest from the owner.

He referred to the case of Taylor v Betterment Properties (Weymouth) Ltd 2012 where it was established that where legible signs are in operation this may be enough to make the user contentious. In his leading Judgment, Lord Patten had said the issue was whether they

  • “had taken sufficient steps so as to effectively indicate that any use by local inhabitants of the registered land beyond the footpaths was not acquiesced in. At the inquiry this turned on the presence or visibility of the signs.”

He observed, that matter was a commons registrations case but the same principles were applicable to the law of prescription. The details of that case varied greatly with this one but here there were two signs clearly visible and clearly showing that it was a private car park for use by Club members. The signs were never vandalised or replaced up to 2007 and Lord Justice Richards in applying Lord Patten’s judgment in Betterment considered that it was clear that the signs

  • “were by themselves sufficient to make contentious the parking of cars and other vehicles by the appellants, their suppliers and customers”.

In his judgment he referred to other cases and authorities which in respect of this case he disregarded. He considered this was a matter where an owner has, through the erection of clearly viewed signs, made his position known, it cannot be said the unauthorised use of his land is “as of right”.  He rejected any contention that the owner should have to act further against the wrongdoers, orally, in writing or through expensive legal action when, through the visible signs, he has made his protest clear.

He concluded that putting up and keeping in good order an appropriate sign is an inexpensive and cordial way to show that the land is private property and not to be used by any others.  He did not consider that those who ignored such signs should feel entitled to obtain legal rights over the land.

He dismissed the appeal.