Archive for June, 2016

You can’t park there!

In February 2015 we reported the case of fish and chip shop customers acquiring, for the shop owners’ benefit, easements by prescription namely a pedestrian right of way and parking on land owned by the neighbouring Conservative Club.  On appeal the Upper Tribunal upheld the rights of access but Judge Purle held, in the light of notices stating parking was for Club patrons only, there was no right to park.  However, he gave leave to appeal (Bennett v Winterburn [2015] UKUT 59 (TCC)).

The appeal was dismissed by the Court of Appeal ([2016] EWCA Civ 482).  Giving judgement, Lord Justice David Richards stated the existence of notices sufficient to prevent rights to park arising but did consider the steps an owner of land should take to prevent others using the land without permission and acquiring rights over it.  He said

“The situation which has arisen in the present case is commonplace.  Many millions of people in this country own property.  Most people do not seek confrontation, whether orally or in writing, and in many cases they may be concerned or even frightened of doing so.  Most people do not have the means to bring legal proceedings.  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.  The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others.  I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land.”

The decision is suprising to some who support Mr Jonathan Gaunt QC’s view that the club should have done more in the light of its notice being ignored “by the simple expedient of erecting a chain across the entrance to the car park, or objecting orally, or writing letters of objection, or threatening or commencing legal proceedings”.  We wait to see if the shop owners appeal to the Supreme Court.

If you wish to hear more about easements, why not contact Hatherleigh Training?