Property

Will they take any notice?

The Ingrow and Hermit Hole Conservative Club in Keighley has a forecourt car park for members. On part of the frontage to Halifax Road, off-set to one side, stands a fish and chip shop, in different ownership. For many years a notice that read “Private car park. For the use of club patrons only. By order of the committee” was prominently visible to everyone using the forecourt, “at all material times” as the Judge put it. It was routinely ignored by the chip shop’s customers and suppliers, who walked over and parked on the club’s forecourt, activities for which the chip shop owners had no rights on paper. The club secretary remonstrated quite frequently with the chip shop operator, but apart from these complaints, the club never took the matter any further.

Eventually, the chip shop owners claimed they had acquired prescriptive rights to walk over and park on the forecourt. The case, Winterburn v Bennett [2015] UKUT 59 (TCC), was heard in the First-Tier Tribunal, where the club lost. However, in February it won on appeal in the Upper Tribunal on the parking issue, but lost again on the pedestrian right of way point. The reasoning was thus.

In order to acquire a right to do something on someone else’s land without getting a formal written deed, the person doing it must do so for at least 20 years in an overt, (i.e. not stealthy) manner and without the permission of the owner, as well as not doing it by force. Case law has clearly decided that doing whatever it is in defiance of clear notice that the owner objects constitutes “force” in a legal sense. Giving notice clearly enough makes the matter contentious, if the notice is ignored. The Appeal Judge held that the club’s notice was effective to tell the whole world, including the chip shop’s customers and suppliers, that the club objected to non-members parking on the forecourt. So the chip shop owner failed to establish a prescriptive right to park.

But, sadly for the club, the notice was too brief. It didn’t prohibit the chip shop’s customers and suppliers walking over the forecourt, because it only referred to use for car parking. In the Judge’s words: “…pedestrian access was not made contentious by the erection of any sign.” On this basis the chip shop owners had acquired a prescriptive pedestrian right of way for their customers and suppliers over the forecourt.

The moral of the story is that such notices must, if they are to be fully effective, prohibit all the uses to which the owner objects, which may be good news for sign-writers and paint manufacturers.

Helpfully the Judge went on to say: “The fact that the club might without much difficulty have taken other steps such as fixing stickers to cars, closing the gates from time to time, or writing a formal letter of complaint to the fish and chip shop owners, is in my judgment neither here nor there.”

Despite these helpful remarks, landowners in this position would still be well-advised not to sit back and rely solely on a well-phrased notice. Cases like this often turn on the conduct of the parties, sometimes over very many years.