Landowners often put up notices advising members of the public that the land that they are crossing is private and not a public highway. This is good practice in order to protect their position. However, in many cases the signs are ignored and the public continue using the land. Does that mean that the public become entitled to use it by way of prescription?
This was the question that the Court of Appeal had to resolve in the recent case of Winterburn v Bennett. Next to the car park of a club house was a fish and chip shop, whose suppliers and customers regularly used the car park, despite a notice which clearly stated that it was a private car park and for the use of the club patrons only. The owners of the fish and chip shop claimed that they were entitled to an easement for parking by prescription.
The Court had to consider whether this use was "as of right". It was accepted that the parking on the land was done openly and without permission from the Club. However, the claimant would have to show that the use was not contentious. The Court held that, since the landowner had made the position clear, there was no obligation on it to take further steps. The Court rejected the suggestion that even though the landowner had erected the requisite notices, it should have to confront the wrongdoers. There was no reason why those who chose to ignore such notices should be entitled to obtain legal rights over the land. What a landowner must ensure is that the signs are sufficiently clear and that if they are vandalised or removed they should be replaced.