Allyson Colby considers how far a landowner must go to demonstrate its objection to use being made of its property
Key points
- Prohibitory notices displayed in a car park sufficed to prevent users who habitually ignored them from acquiring prescriptive rights to park
- It was irrelevant that the notices were erected before wrongful use of the car park began
Landowners can acquire prescriptive rights for the benefit of their own land if they can show that they have made uninterrupted use of a neighbour’s land “as of right” for not less than 20 years. Use is “as of right” if a landowner uses his neighbour’s land openly, peaceably and without being given permission to do so.
Use is peaceable if it is neither violent nor contentious. So, 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, the user will not qualify for the purposes of the law on prescription.
Clearly, use will not qualify if the parties live in a perpetual state of warfare. However, it is not clear how contentious use actually needs to be for it to fail to qualify as user “as of right”. How far must a landowner go to demonstrate that he objects to the use that is being made of his property? Will prohibitory notices stop the prescription clock ticking if users openly ignore them?
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 notices saying: “Private car park. For the use of club patrons only. By order of the committee.” One of the notices was on display in plain sight of anyone entering the car park. However, the notices were ignored, as were protests from representatives of the club who remonstrated with the proprietor of the fish and chip shop from time to time.
Personal convenience
The club suggested that visitors to the fish and chip shop were using the car park for their personal convenience – and that one of the characteristics of an easement is that it must “accommodate” the dominant land. However, the judge drew a parallel with London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356; [2012] 1 EGLR 133. The fact that it was convenient for visitors to use the car park did not alter the fact that the fish and chip shop benefited from its use too.
Pedestrian access
Previous authorities have highlighted the importance of interpreting notices correctly. In R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin); [2010] 2 EGLR 171, the court ruled that notices that were clearly directed at the use of footpaths crossing land could not be interpreted as prohibiting recreational use of the land as a whole.
In this case, the club’s notices made no reference to access on foot and were directed solely at parking. Consequently, the notices did not make pedestrian access contentious and the club accepted that the owner of the fish and chip shop had acquired rights of way on foot from the public highway over the car park for the benefit of himself, his customers and licensees.
Parking
Had the club done enough to indicate that it objected to trespassers parking in its car park? Or should it have taken additional steps to make its position clear? The club could have placed stickers on cars belonging to trespassers, or shut the gates to the car park from time to time, or written formal letters of complaint to the proprietor of the fish and chip shop. Did the fact that it had not done any of these things mean that the trespasses had matured into fully-fledged prescriptive rights?
In Smith v Brudenell-Bruce [2002] 2 P&CR 51; [2001] PLSCS 161, the High Court 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”. Is this a minimum test, which must be satisfied before user becomes contentious?
The judge rejected the notion that this was the law and cited Betterment Properties (Weymouth) Ltd v Taylor [2012] EWCA Civ 250. In that case, the Court of Appeal ruled that it was enough that the landowners had taken all reasonable steps to bring their objections to the attention of users by displaying notices (which were replaced whenever they disappeared).
Therefore, in a straightforward case such as this, the erection of notices that were never vandalised or torn down, and which stated unambiguously that the car park was “for the use of patrons only”, made it clear that the landowner objected to other people parking there. It was irrelevant that the notices were erected before, and not in response to, the wrongful use of the car park and that the notices were not specifically directed at visitors to the fish and chip shop. It had not been suggested that the notices had become redundant and no further action had been required to make the use contentious.
Comment
Landowners will welcome the decision, but would be well advised to err on the side of caution, pending consideration of the case by the Court of Appeal.
What exactly is the line between use in which landowners have acquiesced and use that has been forced on them? In previous cases, the courts have emphasised that the wording and effect of notices must be examined in context. Can landowners rely solely on notices which, to their certain knowledge, have long been disregarded, to prevent the acquisition of prescriptive rights? Practitioners will await the Court of Appeal’s answer with much interest.
Allyson Colby is property law consultant
