In Winterburn & another v. Bennett & another [2016] EWCA Civ 482 the Court of Appeal held that signs clearly visible to all stating that a car park was private property defeated a claim by a neighbouring owner that it had acquired a right to park thereon by long use.
Background
The case concerned a car park in Yorkshire. For many years it was owned by the Conservative Club Association which maintained a sign at the entrance which read "Private car park. For the use of Club patrons only. By order of the Committee". It was established that this and another similar sign on the Club building were "clearly visible to all users of the car park" and clearly informed all users "that it was a private car park for the use of Club patrons only". The signs were taken down in 2007.
Adjacent to the entrance of the car park was a fish and chip shop. Since the late 1980s the owners, customers and suppliers of the shop had parked in the car park.
In 2012, following a change in ownership of the car park, the entrance was obstructed so as to prevent vehicular access. In response, the owners of the shop, the Winterburns, claimed they and their visitors had acquired a right to use the car park through prescription i.e. long use.
The claim
In claiming a right through long use, a claimant must show at least 20 years' uninterrupted use. However, the use must have been "as of right", namely, without force, without secrecy and without permission. "Without force" means more than without violence; it means that the use (here the parking of cars on the car park) has been carried on without protest from the owner of the land i.e. it is not contentious and the owner has acquiesced in it.
The question in this case was whether the presence of the signs in the car park counted as a sufficient protest by the landowner to defeat the claim?
The decision
The Court of Appeal held that the signs alone were sufficient to defeat the claim. The owner of the car park did not have to go further by, for example, erecting a physical barrier, writing legal letters to the offending parties or taking legal action. In the words of Lord Justice Richards "I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings". He went on to comment "there is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs".
Comment
This decision will be welcomed by landowners wishing to prevent third parties acquiring rights over their land through long use.
However, it should not be assumed that signs will always be sufficient. For example:
- it is clear that the decision was dependent on the signs being legible, clear and visible to all users. In other circumstances where such criteria are not met, signs alone may not be sufficient to protect the landowner; and
- the sign must prohibit the relevant activity – a "no parking" sign will not also prohibit a right of way on foot.
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