20th April, 2015 by Jamie Kidd
We look at the recent Upper Tribunal decision of Bennett v Winterburn which appears to answer the question whether land owners can prevent the acquisition of rights over their land by erecting signs ...
FACTS
Trevor and Elizabeth Winterburn run a fish and chip shop in Keighley, West Yorkshire. Gary and Lynne Bennett represent the interests of a Conservative Club, which is adjacent to the fish and chip shop. The club owns land adjoining the shop which it uses as a car park for its members.
The shop customers had enjoyed access over the car park by foot and by vehicles for many years.
Bennett objected to this use by placing notices on the car park. The principal sign read: “Private car park. For the use of club patrons only. By order of the committee”.
LAW
A right to pass over someone else’s land can be acquired if the use is enjoyed for 20 years or more. Such rights can arise by operation of the Prescription Act 1832. However, no rights can arise where the use has been “interrupted” by the owner of the land in question.
The question arose in this case as to whether the signs were sufficient to “interrupt” any rights being acquired by the shop over the club’s land.
FINDINGS
The signs did not object to pedestrian access and therefore had no effect on that use of the land. The shop had acquired a right for its customers to pass over the club’s car park on foot.
The sign in this case was however unambiguous in relation to car parking. It stated that the car park was for use by club patrons only and the Tribunal found this would leave the reader in no doubt that parking by others was objected to and that any use contrary to that was contentious. The fact that other measures could have been taken to more forcibly communicate that the use was contentious was not relevant.
COMMENT
The significance of signs has been particularly relevant in relation to cases where it is claimed that land has been used as a town or village green. The effect of registration of land in this way can potentially prevent any development in the future. In those cases, suitably worded notices will be sufficient to communicate that the use of the land as a town or village green is objected to.
However, it has never been entirely clear what landowners have to do to prevent prescriptive rights arising over their land. This case suggests that physical obstruction may not be necessary and “suitably worded” signs could be enough.
This is a decision of the Upper Tribunal (Tax and Chancery Chamber) and was in turn, an appeal from the First-Tier Property Chamber. Permission to appeal to the Court of Appeal has been obtained.
(1) Garry Bennett (2) Lynne Marie Bennett v (1) Trevor Winterburn (2) Elizabeth Winterburn [2015] UKUT 0059 (TCC)
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