Winterburn & Anor v Bennett & Anor

Use of land cannot establish a prescriptive right unless it continues for 20 years without force, secrecy or permission. Use is contentious, and therefore not without force, when the owner effectively communicates a continuing objection.

A clearly visible and suitably worded sign may alone communicate that objection. Once the owner has made the position clear, the owner need not confront the users, correspond with them, obstruct access or commence proceedings. The required protest must be proportionate to the use and sufficient in its context to show that the use is not acquiesced in.

The appellants operated a fish and chip shop beside a private club car park. Their suppliers and customers parked on part of the car park for more than 20 years. Throughout most of that period, clearly visible signs stated that the car park was private and for club patrons only.

The First-tier Tribunal held that the appellants had acquired parking rights by prescription. On appeal, the Upper Tribunal (Tax and Chancery Chamber), HH Judge Purle QC, reversed that decision and granted permission for a further appeal.

The central issue was whether the signs were sufficient to make the parking contentious and prevent acquisition of an easement by lost modern grant, despite the users ignoring them and the owner taking no further steps to prevent the parking.

1. Appeal dismissed. David Richards LJ, with whom Sharp LJ and Moylan J agreed, held that the signs were sufficient to prevent the parking from being use as of right. The appellants therefore acquired no prescriptive parking easement.

2. A claim by lost modern grant requires 20 years’ uninterrupted use without force, secrecy or permission. “Without force” extends beyond an absence of violence. The use must be peaceable rather than contentious or continued in the face of an effective protest.

3. An owner need not physically prevent the use or commence legal proceedings to avoid acquiescence. A continuous and unmistakable protest may destroy the peaceable character of the use. The relevant inquiry is whether the owner has taken sufficient steps to communicate that the unauthorised use is not acquiesced in.

4. The court followed the approach in Taylor v Betterment Properties (Weymouth) Ltd [2012] EWCA Civ 250. Suitably worded signs which are visible to, and seen by, those using the land make their subsequent use contentious. The adequacy of the owner's response depends on the circumstances and must be commensurate with the scale of the problem.

5. The signs in this case clearly and continuously stated that the car park was private and reserved for club patrons. Any reasonable user would understand that other persons were not permitted to park there. The signs were a proportionate protest even though they pre-dated the appellants’ occupation and were persistently ignored.

6. The court disapproved the obiter formulation in Smith v Brudenell-Bruce [2002] 2 P&CR 4 so far as it suggested that an owner must be prepared to support an objection by physical obstruction or proceedings, or must do everything proportionately possible to contest and interrupt the use. Once clearly visible signs had made the objection plain, the Club did not also have to confront the users, send repeated letters, obstruct the entrance or litigate.

1. Court of Appeal (Civil Division): Dismissed the appellants’ appeal and upheld the Upper Tribunal’s decision: [2016] EWCA Civ 482.

2. Upper Tribunal (Tax and Chancery Chamber): HH Judge Purle QC allowed the respondents’ appeal from the First-tier Tribunal and granted permission to appeal to the Court of Appeal.

3. First-tier Tribunal (Property Chamber): Mr Neil Cadwallader held that the appellants had acquired prescriptive parking rights.