Carter Jonas
Carter Jonas

‘Force’ does not mean ‘violence’ – landowner wins over land use dispute

In Longer View May 2015, we reported on a dispute between the owners of a former Conservative Club car park that went to the Land Tribunal.  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 case was interesting because it 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 Winterburns operated a small fish and chip shop; for more than 20 years their customers and suppliers had parked in the car park or walked across it to 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 and a second sign in the window of the club itself but both were ignored. In 2012, the Winterburns claimed prescriptive easements (a third party right that someone may have over land that belongs to someone else) over the car park.

The First-Tier Tribunal found in favour of the Winterburns. It held that the shop had acquired 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".  The Tribunal was not persuaded that a "passive" sign addressed to no-one in particular was objection enough when the club had chosen not to take other actions such as locking the gates to the car park.  The Upper Tribunal also ruled that the chip shop had been "accommodated" for a period of over 20 years. 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. 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.

The Winterburns went to the Court of Appeal to argue their entitlement to use the car park. But the Court of Appeal upheld the ruling of the Upper Tribunal, stating that “force” does not mean “violence”. Parking in contravention of a clearly worded sign is “force”. A land-owner does not need to physically resist or commence legal proceedings to demonstrate an objection.

Landowners are 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 and no omissions that will give rise to rights, such as neglecting to prohibit pedestrian access.  If third parties acquire rights over a site, the potential for development can be frustrated. Warning signs should also prevent regular public access giving rise to registration as a Town or Village Green, which can also sterilise a development site. The small step of erecting a sign can give a lot of the legal protection required.

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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