Easements – Prescription – Rights of way – Appellants claiming prescriptive rights of way on foot and with vehicles over car park for benefit of fish and chip shop – Whether erection of signs sufficient to prevent acquisition of vehicular right – Whether signs rendering use contentions and not “as of right” – Appeal dismissed
The appellants owned a fish and chip shop in Keighley, West Yorkshire. For many years, customers and suppliers had accessed the fish and chip shop by crossing a car park belonging to the adjoining Conservative club and had also parked their vehicles there. The club had erected signs in the car park stating that it was a private car park for the use of club patrons only. The respondent acquired the club building and car park in 2010 and later let it to a tenant, who obstructed vehicular and pedestrian access to the car park.
The appellants claimed to have 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. Upholding that claim, the first-tier tribunal (FTT) found that the signs erected by the club were not sufficient to prevent vehicular rights from arising in circumstances where the signs pre-dated the appellants’ arrival and were not specifically directed at them, and where the respondents had taken no additional steps to protest, such as solicitor’s letters or court proceedings, despite being aware that the signs were being completely ignored.
On appeal from that decision, the respondents raised a further argument 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.
Rejecting that argument, the Upper Tribunal held that it was not necessary, in order to start time running for the prescription purposes, that the servient owner should have been able to sue the dominant owner in trespass, so long as the use of the servient land accommodated the dominant land. It upheld the FTT’s finding that a pedestrian right of way had been established. However, it held that no vehicular right had been acquired, since the day-today presence of the signs precluded the acquisition of such a right: see [2015] UKUT 59 (LC); [2015] PLSCS 51. The appellants appealed.
Held: The appeal was dismissed.
A right by prescription would be acquired only if the use was “as of right” in the sense of being without force, secrecy or permission. The latter two elements were fulfilled in the instant case since it was not disputed that the parking in the respondents’ car park was open and known to the respondents and that no permission for parking had been given. It was the “without force” element that was in dispute.
The phrase “without force” carried more than its literal meaning. It was not enough for the person asserting the right to show that he had not used violence; he had to show that his user was not contentious or allowed only under protest.
The basis of the law of prescription was acquiescence on the part of the owner of the land: Dalton v Henry Angus & Co (1881) 6 App Cas 740 applied. There was no requirement, in order to avoid acquiescence, that the owner of the relevant property should always take steps through physical means or legal proceedings actually to prevent the wrongful user. The authorities did not support the proposition that a servient owner had to be prepared to back his objection either by physical obstruction or by legal action, or that he was required to do everything, proportionately to the user, to contest and to endeavour to interrupt the user. The issue was whether the owner had taken sufficient steps effectively to indicate that he did not acquiesce in the unlawful user. The continuous presence of legible signs might be sufficient to render user contentious, by bringing to the attention of those using the land that they were not entitled to do so: R (on the application of Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 2 AC 70; [2010] 1 EGLR 153, Newnham v Willison (1987) 56 P&CR 8 and Betterment Properties (Weymouth) Ltd v Dorsey County Council [2012] EWCA Civ 250; [2012] 2 P&CR 3; [2012] PLSCS 53 applied; Smith v Brudenell-Bruce [2001] EWHC Admin 504; [2002] 2 P&CR 4; [2001] PLSCS 161 considered.
In the instant case, the circumstances were such as to indicate to persons using the land that the landowners objected, and continued to object, to the parking. The signs were clearly visible to all users of the car park, clearly informing them that it was a private car park for the use of club patrons only. The presence of the sign clearly indicated the landowners’ continuing objection to unauthorised parking. While the protest needed to be proportionate to the user, the continuous presence of the signs, asserting that it was private property for use by the Club’s patrons only, was a proportionate protest. It made no difference that the signs were in place before the appellants went into occupation of the fish and chip shop.
Nor was there any requirement, in the face of continued unlawful parking by those not entitled to do so, to erect further signs ordering the unlawful parking to cease. Any reasonable person, whether in the position of the owner of the land or those unlawfully parking on it, would understand the meaning and effect of the signs to be that persons other than the club’s patrons were not allowed to park on the car park and should not do so. There was no requirement for the landowner to take further steps such as erecting a chain across the entrance to the car park, or objecting orally, or writing letters of objection, or threatening or commencing legal proceedings, in order to prevent the acquisition of a legal right. In circumstances where the owners had made their position entirely clear through the erection of clearly visible signs, the unauthorised use of the land could not be said to be “as of right”. The signs were by themselves sufficient to make contentious the parking of cars and other vehicles by the appellants, their suppliers and customers.
Jonathan Gaunt QC (instructed by DAC Beachcroft LLP, of Bristol) appeared for the appellants; Guy Fetherstonhaugh QC and Bruce Walker (instructed by Butcher & Barlow LLP, of Northwich) appeared for the respondents.
Sally Dobson, barrister
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