Many developers and landowners are taken completely by surprise to find out, that third parties have acquired rights over their land and that these rights may restrict the landowner's use of the land, even where planning permission is in place.
All developers will be aware that one such right that may be acquired inadvertently over their land by third parties is an easement by prescription. Prescriptive easements are created by 20 years uninterrupted use of the land. The use has to be ‘as of right’ – without secrecy, without permission and without force - this means that third parties cannot acquire rights if the landowner has objected to the third parties’ use over the twenty year period. Those attempting to acquire an easement need to show their use was not contentious , i.e. that it did not contravene prohibition or protest from the land owner.
Where there is some concern that land is, or may be, used by third parties it is common for landowners to erect signs in an attempt to prevent the acquisition of such easements by demonstrating that any use by third parties is contentious . But do such notices work if they are ignored or are landowners required to take additional steps through physical means or legal proceedings to enforce their rights?
The Court of Appeal considered in the case of Winterburn v Bennett  EWCA Civ 482 whether a property owner can prevent third parties from acquiring rights of way over their land by way of prescription by simply placing notices or signs on the property.
This case involved the car park at the Keighley Conservative Club. Adjacent to the entrance of the car park was a fish and chip shop. For more than 20 years customers had parked there whilst they bought their fish and chips and others had walked across the Conservative club’s carpark. The fish and chip shop suppliers had parked in the car park when making deliveries.
During this period of use there was a sign attached to the wall of the building on one side of the entranceway to the car park. It had been erected on behalf of the Club and read: “Private car park. For the use of Club patrons only. By order of the Committee”. The sign was clearly visible to users of the car park whether on foot or by vehicle. A further sign had been displayed in the conservative club itself and from time to time the club steward complained to the fish and chip shop owners about their customers’ use of the car park. No further action was taken to prevent the use of the car park by suppliers and customers.
The issue for the Court was whether these signs were enough to prevent the fish and chip shop acquiring a prescriptive right to park cars and other vehicles in the car park.
The Court concluded that no vehicular right of way or right to park had been acquired by the fish and chip shop owners. In this case the circumstances were such as to indicate to people parking in the car park that the club objected to their use of the land. The signs were visible to all users of the car park and clearly informed them that it was a private car park for the use of club patrons only. The presence of the signs clearly indicated the club’s continuing objection to unauthorised parking. The owner of the car park was not required to take further action such as to erect a physical barrier or write legal letters to the offenders. Lord Justice Richards stated “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 signs were, by themselves, sufficient in this case to prevent a prescriptive easement arising. However, although the club’s notice was effective to tell the chip shop’s customers and suppliers that the club objected to non-members parking in the car park the notice did not object to customers walking across the car park and the chip shop was able to acquire an easement for pedestrian access as the pedestrian access was not made contentious by the erection of the sign.
Practical points arising
Landowners and developers will welcome this decision, as it provides a simple way of ensuring that third parties do not acquire a variety of easements over land which may affect its value and development potential. It also avoids unnecessary costs in installing fences and barriers or in bringing legal proceedings.
Such signs will also help to defeat claims for registration of the land as a town or village green and the decision reflects sensible policy considerations drawing a parallel with the light obstruction notice procedure under the Rights of Light Act.
Such notices, to be effective, will need to be clear visible warning signs that the land in question is private, erected in prominent positions and they will need to ensure that the wording of the objection specifically covers all types of unauthorised use of the land.