Trevor & Elizabeth Winterburn v Garry & Lynne Bennett [2016] EWCA Civ 482

The Court of Appeal has upheld the High Court’s decision that a landowner can successfully defeat, via the simple erection of signs, a claim from a neighbouring landowner to have a prescriptive right to park on its land.

An easement (in legal terms a right) can arise by prescription if a trespasser shows 20 years’ use “as of right”: without force, without secrecy and without permission.

In this case, the owners of a fish and chip shop claimed that they (and their customers and suppliers) had a prescriptive right to walk across, and to park in, a car park belonging to a neighbouring conservative club. During the 20 years of use, the car park contained plainly visible signs stating: “Private car park. For the use of club patrons only. By order of the committee”.

In considering the question of whether the right was used “without force”, the Court of Appeal focused on the question of whether or not its use was contentious and took guidance from the decision in Taylor v Betterment Properties (Weymouth) Ltd [2012 EWCA Cic 250.

The Court showed an awareness of the practicalities of the real world, deciding that a landowner does not need to initiate formal legal proceedings, write letters or physically confront trespassers to demonstrate that use of their land was contentious. In making its decision, the Court was aware that many may not be in a position to bring legal proceedings and that most do not seek out confrontation.

Provided that any signs are sufficiently clear, visible and understandable, their erection will prevent another from acquiring prescriptive rights over a landowner’s property.

Key Points

  • The decision will be welcomed by landowners as it provides a relatively easy and inexpensive means of preventing another from acquiring rights over their land.
  • Signs must make the position sufficiently clear to those using the land.
  • Care must be given to the specific wording of any notice. Whilst the sign in this case prevented the acquisition of a right to park on land, it did not prevent the acquisition of a pedestrian right of way by prescription; the wording of the signs did not make such use “contentious”.