Sign of protest

A right to park motor vehicles on land belonging to another is an easement known to the law (see Moncrieff v Jamieson [2007] UKHL 42). A right to park may be created by an actual grant

or by a presumed grant based on long use (prescription). The recent Court of Appeal decision in Winterburn v Bennett [2016] EWCA Civ 482 concerned the steps a landowner must take

to prevent an easement of parking arising over their

land by prescription.

The appellants owned a fish and chip shop. Next to the shop was a car park belonging to the former Conservative Club, whose premises were located across the road. The club closed in 2010. Its building and car park were then purchased by the respondents.

Over a continuous period

of more than 20 years, from about 1987, customers of the appellants' shop had parked in the car park while buying their fish and chips. So too had suppliers' lorries making deliveries to the shop. The appellants claimed that the

long use of the car park in connection with their shop

had given rise to an easement

of parking by prescription.

The First-tier Tribunal held that

it had, but the Upper Tribunal reached the opposite conclusion. The appellants appealed to the Court of Appeal.

Modes of prescription

By way of background, the law provides for no fewer than three different modes of prescriptive acquisition of easements. They are common law prescription, prescription under the Prescription Act 1832, and

lost modern grant.

Each mode of prescription rests on slightly different periods of use. However, common to all modes of prescription are certain requirements as to the nature

of the use which the party claiming the easement '“ the dominant owner '“ must show over the land of the servient owner. In particular, the use must be sufficiently continuous; it must be made by or on behalf of a freeholder, against a freeholder; and the use must be 'as of right', i.e. without force, secrecy, or permission.

In Winterburn, the appellants relied upon lost modern grant.

In the Court of Appeal, the respondents disputed the claim on the basis that the appellants' use of the car park had not been 'without force'. Earlier decisions had established that 'without force' was not to be equated simply with an absence of violence, and that use in the face of protest would not qualify as use 'without force'. In Winterburn, there had been a notice in the car park until 2007, clearly visible to all, stating 'Private Car Park. For use of Club Patrons Only.

By Order of the Committee'. The issue was whether this notice counted as sufficient protest so as to disqualify the appellants' use of the car park as 'forcible'.

Degree of protest

The court, dismissing the appeal, concluded that the servient owner was not obliged to take physical steps to prevent the dominant owner's use. Nor was the servient owner obliged to issue legal proceedings. Lesser forms of protest would suffice, and the notice erected by

the club in the instant case

was sufficient.

A number of propositions may be drawn from the judgment of Lord Justice David Richards (with which the other judges agreed). First, an earlier dictum (in Smith v Brudenell-Bruce [2002] 2 P&CR 4) to the effect that the servient owner must do everything they reasonably can to contest and

to endeavour to interrupt the use placed too high a burden

on the servient owner. Second, the servient owner's protest must nevertheless be clear and unmistakeable (which was the case on the facts). Third, the degree of protest must be proportionate to the degree of use (also the case on the facts). Finally, where the protest failed (i.e. the signs were ineffective), the servient owner nonetheless came under no further obligation to take more potent steps, such as physical or legal action, to contest the use.

These propositions will make it considerably easier for servient owners to prevent the creation of all sorts of easements '“ including rights of way '“ over their property. The law may thus be seen to reflect sensible policy considerations, namely (per Richards LJ) that 'there is a social cost to confrontation, and unless absolutely necessary, the law should not require confrontation in order for people to retain and defend what is theirs'.

In that respect, a parallel

may be drawn with the light obstruction notice procedure under the Rights of Light Act 1959, which allows a servient owner to prevent the creation of prescriptive rights without the requirement to erect a physical barrier interfering with the dominant owner's light. Ultimately, of course, what amounts to sufficient protest is

a matter of degree, likely to give rise to additional litigation (will

a 'Trespassers will be prosecuted' sign suffice?). But overall, the law now stands on a reasonably clear and sensible basis, for which

the Winterburn decision is to

be welcomed..

Toby Boncey and Anthony Tanney, pictured, are barristers at Falcon Chambers @FalconChambers1 www.falcon-chambers.com