Trevor Winterburn and Another v Garry Bennett and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Mr Justice Moylan,Lady Justice Sharp |
| Judgment Date | 25 May 2016 |
| Neutral Citation | [2016] EWCA Civ 482 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2015/0680 |
| Date | 25 May 2016 |
[2016] EWCA Civ 482
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(TAX AND CHANCERY CHAMBER)
HIS HONOUR JUDGE PURLE QC
FTC/63/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Lord Justice David Richards
and
Mr Justice Moylan
Case No: A3/2015/0680
Jonathan Gaunt QC and Caroline Shea QC (instructed by DAC Beachcroft LLP) for the Appellants
Guy Fetherstonhaugh QC and Bruce Walker (instructed by Butcher & Barlow Solicitors) for the Respondents
This appeal raises an issue as to the steps which an owner of land must take to prevent others using the land without permission from acquiring rights over the land. The appellants claim, as a result of use over a number of years, to have acquired by prescription the right for themselves and others using their premises to park on land belonging to the respondents. The First-tier Tribunal (Property Chamber) (Mr Neil Cadwallader) held that the appellants had established their claim to parking rights, but the Upper Tribunal (Tax and Chancery Chamber) (HH Judge Purle QC) allowed an appeal against that decision. Judge Purle gave permission to appeal to this court.
The land in question (the disputed land) is in Keighley, West Yorkshire. It comprises part of a car park which until 2010 was owned by the Conservative Club Association (the Club). On the far side of the car park from the road, the Club had premises which housed a bar and other social facilities for members of the Club. The car park was used as a car park for the Club. The appellants own and operate a fish and chip shop which is close to the road and adjacent to the entrance to the car park. There is a relatively narrow entranceway to the car park from the road with the wall of a building on one side, until its demolition in 2007, and the appellants' premises on the other side.
The Club owned and used the club house and car park for many years until 2010 when they were purchased by the respondents. In May 2012 the respondents let the Club building and car park to a tenant who obstructed access to the car park from the road, preventing all access by cars and other vehicles but not pedestrian access. Later in 2012, the tenant obstructed pedestrian access also. This appeal is not concerned with pedestrian access but only with the parking of cars and other vehicles on the disputed land.
The appellants went into occupation of the fish and chip shop in 1987 or 1988 as tenants or licencees and have operated it as such since then. They took a 20 year lease of the property in 1992. They purchased the freehold reversion in 2007 and were registered as its freehold proprietors. The FTT found, and there was little if any dispute about this, that throughout the time that the appellants operated the fish and chip shop until 2012, suppliers had up to nine times a week pulled off the road into the disputed part of the car park and parked there for long enough to make their deliveries. Also, throughout that period, customers had during opening hours pulled off the road to park on the disputed land while they bought their fish and chips. On the whole this use of part of the car park did not interfere with the Club's operations but over a seven year period there were 12 to 15 occasions on which the Club steward asserted ownership of the disputed land, and, expressly or impliedly, asserted that the appellants and their suppliers and customers had no right to park on it, and also complained that their customers should not park in such a way as to cause an obstruction to the Club's patrons.
At all times until 2007 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". It was attached at right angles to the wall and the FTT found that it was "clearly visible to anyone entering the disputed land, whether on foot or by vehicle. It must have been seen by many of the people so entering the disputed land to go to the shop". During the same period there was a similar sign in the window of the Club premises which, as the FTT found, was "also clearly visible, although no doubt less so from the access land because further away."
These signs did not deter the appellants' suppliers and customers from parking on the disputed land. As the FTT found:
"Neither the [appellants] nor any of those utilising the access land for purposes connected with the shop took the slightest notice of those signs. Save as described below, no-one made any attempt to restrict use of the car park to Club patrons only, or to exclude the [appellants] or their visitors."
The FTT goes on to summarise the evidence of the Club steward to which I have earlier referred.
The issue on this appeal is whether the signs were sufficient to prevent the appellants acquiring a right to use the disputed land as a car park for themselves and their suppliers and customers or whether the owners of the car park had acquiesced in such use so as to entitle the appellants to such a right, notwithstanding the presence of the signs.
The appellants based their claim to a right to park cars and other vehicles belonging to themselves, their suppliers and customers on acquisition by prescription by "lost modern grant". This requires the appellants to show 20 years' uninterrupted user "as of right", that is to say without force, without secrecy and without permission ( nec vi, nec clam, nec precario).
The purpose of the law whereby a person may acquire rights by prescription is that the legal position should reflect and recognise the fact of long use (see Law Commission Consultation Paper No.186: Easements, Covenants and Profits à Prendre, March 2008 para 4.178). In R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335 ( Sunningwell) Lord Hoffmann said at p.349:
"Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment."
By way of explanation of the need for the long user to be without force, secrecy or permission and therefore "as of right", Lord Hoffmann said in the same case at p.350:
"The unifying element in these three vitiating circumstances was that each constituted a reason why it would not be reasonable to expect the owner to resist the exercise of the right – in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period."
In the present case, it is the element "without force" that is in issue. There is no doubt that the parking on the disputed land was open and known to the Club and, later, the respondents and that no permission for parking had been given.
The phrase "without force" carries rather more than its literal meaning. It is not enough for the person asserting the right to show that he has not used violence. He must show that his user was not contentious or allowed only under protest. This appeal is concerned with what constitutes protest on the part of the owner of the land for these purposes.
Mr Gaunt QC for the appellants rightly emphasised that the basis of the law of prescription is acquiescence on the part of the owner of the land. In Dalton v Angus (1881) 6 App Cas 740, in which the doctrine of lost modern grant was authoritatively established, Fry J, one of the judges asked to give his opinion to the House of Lords said at p.773 in a passage cited with approval by Lord Hoffmann in Sunningwell:
"But leaving such technical questions aside, I prefer to observe that, in my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest."
Mr Gaunt submitted that, to counter acquiescence in the unlawful use of land, it must be resisted or suitably protested against in a proportionate manner. The circumstances must indicate that the owner objects and continues to object to the unlawful use. If reliance is placed on protests, they must be continuous and repeated.
In a commendably economic manner, Mr Gaunt cited from a number of the leading authorities, beginning with Dalton v Angus. In that case, the House of Lords was concerned to establish whether the owner of a building enjoyed a right of support from neighbouring land and, if so, how this right arose in the absence of contract or ancient user. For these purposes, the House of Lords sought the opinions of seven common law and equity judges who were present when the case was argued and whose opinions are reproduced in full at pages 742–789 of the report. It is important to note that exactly what can or cannot constitute "without force" was not the issue in the case but the requirement for user "as of right" was in point because all the judges, and the members of the House of Lords, considered that the right of support either was an easement that could be acquired by prescription or arose in a manner analogous to the acquisition of an easement...
To continue reading
Request your trial
-
R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs
...period of signs permitting (or for that matter prohibiting) public use would have prevented such use of the land being as of right: Winterburn v Bennett [2016] EWCA Civ 482, [2017] 1 WLR 646. In such circumstances it is hardly surprising that they both failed to establish its practical in......
-
Leven Holdings Ltd v (1) Nicholas Matthew Middlemass Johnston
...properly to be regarded as “ contentious” between the parties for it to be regarded as not being as of right. In the recent case of Winterburn v Bennett [2017] 1 WLR 646, CA, both suppliers to and customers of the claimants' fish and chip business had for more than twenty years parked in t......
-
T W Logistics Ltd v Essex County Council and Another
...to the continued use of his land." 57 The Court of Appeal recently considered and applied these principles in Winterburn v Bennett [2016] EWCA Civ 482. There the issue was whether clear signs stating "Private car park. For the use of Club patrons only" were sufficient to prevent third party......
-
R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs
...was enough to demonstrate that such use had not been “as of right” (see the judgment of David Richards L.J. in Winterburn v Bennett [2017] 1 W.L.R. 646, at paragraphs 35 to 41). The county council did not have to put up signs, or adopt a “policy” for resisting trespass. But in any event the......
-
Collas Crill Explains... Acquiring Rights Over A Neighbour's Lands
...that the wording of the objection specifically covers all types of unauthorised use of the land. In the case of Winterburn v Bennett [2016] EWCA Civ 482, the owners of a fish and chip shop claimed a right by prescription to use the neighbouring owner's car park. Their suppliers and customer......
-
Collas Crill Explains... Acquiring Rights Over A Neighbour's Lands
...that the wording of the objection specifically covers all types of unauthorised use of the land. In the case of Winterburn v Bennett [2016] EWCA Civ 482, the owners of a fish and chip shop claimed a right by prescription to use the neighbouring owner's car park. Their suppliers and customer......
-
The writing's on the wall - Winterburn & another v. Bennett & another
...Winterburn & another v. Bennett & another [2016] EWCA Civ 482 the Court of Appeal held that signs clearly visible to all stating that a car park was private property defeated a claim by a neighbouring owner that it had acquired a right to park thereon by long The case concerned a car park i......
-
Easy Easements - Part 2
...the continued exercise by an occupier of land of a right over neighbouring land for twenty consecutive years. Winterburn v Bennett [2016] EWCA Civ 482 It is a principle familiar to those in the property industry that where no legal right of way exists at the outset, the continuous use by a ......
-
Town and Village Greens
...Council [2012] EWCA Civ 250, followed in R (Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin) and Winterburn v Bennett [2016] EWCA Civ 482, [2017] 1 WLR 646. 78 Taylor v Betterment Properties (Weymouth) Ltd and Dorset County Council [2012] EWCA Civ 250 at [63]. 79 R (Beresford)......
-
Table of Cases
...Environment [1982] JPL 445 90 Winterbottom v Lord Derby (1867) LR 2 Exch 316, 31 JP 566, 36 LJ Ex 194, ExCh 572 Winterburn v Bennett [2016] EWCA Civ 482, [2017] 1 WLR 646, [2017] RTR 5, [2016] 2 P & CR 11 509 Wolff v Enfield London Borough Council (1988) 55 P & CR 78, [1987] 1 EGLR ......