Property litigation expert Kelly Kirby discusses the implications of a recent Court case where a dispute arose over illegal parking.
In the recent case of Winterburn v Bennett, the owners of a fish and chip shop claimed that they had acquired the right to park vehicles belonging to their customers and suppliers on a car park which was owned by a nearby Conservative Club Association.
The dispute arose as, despite the Club clearly displaying signs that the car park was private and for use of Club patrons only, the fish and chip shop’s suppliers would use the car park when making deliveries and their customers would use it to park whilst ordering food.
The Club rented their property and car park to a tenant who blocked access to the car park from the road, preventing it from being accessed by any vehicles. The shopowners claimed that they had acquired a right to park vehicles belonging to their customers and suppliers on the Club’s car park as they had done so without force, without secrecy and without permission. Accessing land without force, secrecy or permission is one of the requirements of acquiring an easement when has not been specifically granted.
COURT OF APPEAL
The case came to the Court of Appeal who had to decide whether, on the facts, the shopowners had acquired an easement over the Club’s car park. The Court decided that no such easement had been acquired and that the shopowners did not have the right to use the car park.
The key element was use of the easement "without force". The Court decided that this term has more than its literal meaning and it is not enough to show that no violence was used in connection with the use of the land. The meaning of without force was interpreted to mean that the use was not contentious. The Court was satisfied that the displaying of the signs by the Club was sufficient to show that the shopowners’ use of the car park was contentious and therefore they had not acquired any rights to use the car park.
This case establishes that, if a landowner has made it clear that they object to unauthorised use of their land , there is no obligation on them to take further steps such as confrontation or beginning legal proceedings in order to prevent any rights over their land arising.
The Judgment should come as welcome news for landowners who suffer from unauthorised use of their land for access, parking or any other uses. Clear use of signs demonstrating that the use is not permitted should be sufficient to prevent any unauthorised users gaining rights over the land.
Anyone in the shopowners’ position should be aware that the courts are unlikely to determine that they have acquired any rights over land where the landowner has made it clear that the use of their land for that purpose is not permitted.