Easements – Prescription – Rights of way – First-tier tribunal finding that respondents acquiring rights of way on foot and with vehicles over car park for benefit of fish and chip shop – Whether prescriptive right capable of arising where based on trespass of customers for which no claim against respondents arising – Whether erection of signs sufficient to prevent vehicular use from being “as of right” and thus preclude acquisition of vehicular rights by prescription – Appeal allowed in part
The respondents owned a fish and chip shop in Keighley, West Yorkshire, access to which had, for many years, in practice been enjoyed over a car park belonging to the appellants, with customers and suppliers of the fish and chop shop crossing the car park on foot and also parking in it. The car park was intended to serve an adjoining Conservative Club and signs on the site stated that it was a private car park for the use of club patrons only.
In proceedings between the parties, the first-tier tribunal (FTT) held that the respondents had acquired prescriptive rights of way on foot and with vehicles over the car park for the benefit of themselves, their licensees and customers as a result of more than 20 years’ use as of right. The FTT found that the erection of the signs was not sufficient to prevent vehicular rights from arising in circumstances where the signs pre-dated the respondents’ arrival and were not specifically directed at them, and where the appellants took no additional steps to protest, such as solicitor’s letters or court proceedings, despite being aware that the signs were being completely ignored.
The appellants appealed. They contended that the FTT had erred in holding that the use of the car park by customers of the fish and chip shop accommodated the dominant tenement so as to establish an easement. In that regard, they submitted that time could not run for prescription purposes unless the servient owner could bring a claim in trespass against the dominant owners, and that the trespass by customers gave rise to no such claim since the customers were not the agents of the owners.
The appellants further argued that the presence of the signs on the car park was sufficient to prevent the parking use from being “as of right” for the purposes of establishing vehicular rights
Held: The appeal was allowed in part.
(1) There was no requirement that, in order to start time running for the purposes of acquiring a prescriptive easement, the servient owner should have been able to sue the dominant owner in trespass. All that was needed was that the use of the servient land should accommodate the dominant land. The FTT had been entitled to find that that condition was satisfied on the facts of the case and it followed that the respondents were entitled to maintain the rights of pedestrian access which they had established: London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356; [2012] 1 P&CR 13; [2012] 1 EGLR 133 applied.
(2) However, the respondent had acquired no prescriptive rights for vehicles over the car park in circumstances where there were clearly visible and unambiguous signs on the site throughout the relevant period. It was irrelevant that the signs pre-dated the arrival of the respondents and were not specifically directed at them. The erection of a sign which was there from day to day made it unnecessary to take further steps, such as writing letters, unless it was possible to conclude that the sign had become redundant, which was not suggested in the instant case. The judge had therefore erred in concluding that more needed to be done than maintain the notices visibly in place. The appeal was therefore allowed as regards access by vehicles: Betterment Properties (Weymouth) Ltd v Dorset County Council [2012] EWCA Civ 250; [2012] PLSCS 53 applied; R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889; [2004] 1 EGLR 94 considered; Smith v Brudenell-Bruce [2001] EWHC Admin 504; [2002] 2 P&CR 4; [2001] PLSCS 161 distinguished.
Guy Fetherstonhaugh QC (instructed by Dyne Solicitors Ltd, of Chester) appeared for the appellants; Caroline Shea (instructed by DAC Beachcroft LLP, of Bristol) appeared for the respondents.
Sally Dobson, barrister
