Warning signs on land can be sufficient legal notice to prevent someone acquiring a right to park even if they have done so for many years.

In the case of Winterburn & Anor v Bennett & Anor [2016] EWCA Civ 482, the Court of Appeal has given important and practical guidance to landowners on how they can better manage their property and avoid the risk of others obtaining legal rights.

Acquiring legal rights by long use of land

The law states that if someone can show that they have used someone else’s land for the benefit of their own land without ‘force, secrecy or permission’ for 20 years, then they can acquire a legal right to carry on doing so indefinitely. Examples of acquired rights are rights of way or rights to park cars. For the person/land acquiring the new right it can be very valuable. For the person whose land is subject to the new right it can be at best inconvenient, and at worst very expensive.

Unauthorised parking

In the Winterburn case, the disputed land was a car park. At the time of the current hearing the car park was owned by the Bennetts, but for the time period relevant to this case it had been owned by the local Conservative Club. The Club had an adjacent building.  Next to the car park was a fish and chip shop, run by the Winterburns since around 1988. The shop and car park were separated by a low wall. It was generally accepted that from 1998 to 2012, suppliers and customers would use the car park.

On around a dozen occasions in a seven year period, the Club steward alerted the shop owners/their suppliers/customers that they were not to park on the Club car park, for example when someone was blocked in the car park.

Until 2007 there was a sign at the entrance to the car park stating ‘Private car park. For the use of Club patrons only. By order of the Committee’ which could be seen by anyone entering the car park. There was another similar sign in the window of the Club premises which was a little less conspicuous.

It was also generally accepted in the proceedings that the signs had been universally ignored. People had parked in the car park without permission throughout the relevant time.

The court case

The dispute was heard by a Tribunal before being appealed to the Court of Appeal. It was admitted that unauthorised parking had continued for more than 20 years. The issue was whether the signs were sufficient to protect the Club’s land.

The legal case for the Winterburn’s fish and chip shop was that the Club, by merely erecting signs, had not strongly or consistently enough objected to the unlawful parking. The legal representative for the Winterburns suggested that at least strong warning letters should have been sent by the Club, and if necessary, legal proceedings brought.

The Court of Appeal summarised that it is not essential for an objecting landowner to bring court proceedings or use physical obstructions to prevent parking. Instead, what is required is evidence that the landowner had indicated that non-permitted use would be ‘contentious’.

The Court of Appeal referred to and relied upon a 2012 judgment in the case of Taylor v Betterment Properties (Weymouth) Ltd and another  [2012] EWCA Civ 250.

In the Betterment case (which was a case about whether members of the public had acquired public rights over private land), the landowners had erected ‘no entry’ signs on the land forbidding the public from accessing it. However, these signs had been frequently removed or vandalised, so it was difficult to prove that someone accessing the land on any particular occasion would have seen a ‘no entry’ sign. Nevertheless the use of signs generally was held to demonstrate that when people accessed the land it was ‘contentious’, and as such a legal right to do so would not be created. 

In the Winterburn case, it was not disputed that the ‘no parking’ signs had been generally visible for many years. Therefore the Court of Appeal found that not only was the objection to parking clear, but that it was also evidence of a continuing objection.

In these circumstances it was not necessary for the Club to send warning letters to the fish and chip shop in order to make the element of contention sufficient.

In short, simply because an affected owner could ‘escalate’ its complaints by letters, obstructions or legal proceedings, those steps would not be necessary to protect a legal right if other demonstrations of an objection have been sufficiently clear.

It is also clear that the Court was alert to some of the practical consequences of its judgment. It explicitly referred to the fact that many people simply could not afford to take this sort of dispute to court, and that there was a ‘social cost’ to encouraging confrontation which should be avoided.

Practical advice

The judgment in the Winterburn case provides very helpful guidance as to how a landowner can protect their land; it is not essential for a landowner to take all possible steps (including court proceedings) to demonstrate that use by a third party was ‘contentious’ if other clear objections have been used. In relation to rights of way, or rights of parking, clear signs should be sufficient, but in reality a landowner should make it clear that their concerns about the use of land by others has been challenged.

It remains essential that use of land is regularly monitored to check if any problems arise, and then to consider what is the most appropriate way of responding, be it a sign or a letter of complaint, or if the problem is sufficiently serious, court proceedings. If another person is using your land without your permission then advice should always be sought on how best to respond, even if legal proceedings are not necessary.

Download A right to park? Fish and chip shop owners get battered in Court of Appeal.