Carter Jonas
Carter Jonas

HTake notice: Say what you mean

A dispute between the owners of a Conservative Club car park and a neighbouring chip shop may seem far removed from farming.

But a recent Land Tribunal case illustrates clearly that not being clear about what you expressly forbid in third party use of your land can establish a right or easement for its use by others. This could eventually lead to problems with development schemes or changes of land use so it’s an issue that cannot be ignored.

The case of Bennett v Winterburn concerned the use of a car park in the West Yorkshire town of Keighley, originally owned by the local Conservative Club but sold to the Bennetts by the time the case reached Court.

The adjoining (dominant) land was owned by the Winterburns, who operated a small fish and chip shop. From about 1988 onwards - for a period in excess of 20 years - the chip shop customers and suppliers had parked their vehicles in the car park (the servient land) or walked across it to access the shop.

During the time that it owned the car park, the club put up a sign reading: "Private car park. For the use of club patrons only. By order of the committee".

The owners of the shop were aware of the clearly visible sign. There was also a second sign in the window of the club itself but both were ignored by the shop's customers and suppliers. In 2012, the Winterburns claimed prescriptive easements over the car park.

An easement is a third party right that someone may have over land that belongs to someone else. The right may permit the beneficiary to use the other party's land in a certain way or prevent the owner from using it in a certain way.

A number of legal requirements must be met for an easement to exist. In particular for this case, there must be a dominant property, which benefits from the use, and a servient property.

The First-Tier Tribunal found in favour of the Winterburns. It held that the shop had indeed acquired the benefit of a right of way by foot and by vehicle over the car park.

The Bennetts had argued that the club’s sign meant that there could be no prescriptive easement because the use of the car park in breach of the sign meant that the use was legally

"forceful". They argued that the sign had rendered use of the car park by anyone other than a club member contentious, and so the Winterburns were unable to meet the criteria for acquiring an easement by prescription.

The Tribunal was not persuaded that a "passive" sign addressed to no-one in particular was objection enough. There were other actions that the club could have taken, such as locking the gates to the car park, but it had chosen not to take them.

The Upper Tribunal also ruled that the dominant land had been "accommodated" for a period of over 20 years, which had started running at the point when the shop began to benefit from customers and suppliers using the car park for parking and access.

However, the owners of the car park had more success with their second ground of appeal when they argued that the prohibitory sign, addressed to everyone and thus including the shop's customers and suppliers, made it clear that parking on the car park by other than club members was objected to by the club.

The Upper Tribunal considered that a suitably worded notice was sufficient to render use of land in contravention of that notice contentious and thus not "as of right". The same principle applied here, where the sign was clear and unambiguous.

The Upper Tribunal found that it was irrelevant that the club's sign was not specifically directed at the Winterburns or their customers. Consequently, the Winterburns had not acquired any rights to park on the car park.

However, the Upper Tribunal dismissed the appeal so far as it related to pedestrian access, because the club's sign had restricted parking only. As a consequence, the Upper Tribunal found that a right of way across the car park by pedestrians had arisen after continuous usage in excess of 20 years by the shop's customers.

The ruling confirms that a well-worded sign should be enough to prevent rights being acquired over property.

An appeal of this decision to the Court of Appeal has been lodged – while an update is awaited bear in mind that the case confirms that landowners will still be protected by appropriate signage even where that signage is routinely ignored. The moral is to make sure any signs you erect to protect your land say precisely what you mean, with no ambiguity that can be exploited later to establish third party rights.

Tom FawcettMRICS, FAAV

Partner

Tom is a Partner advising private and institutional clients on all aspects of rural property management specialising in strategic planning in respect of development, succession planning, purchases...

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