The Court of Appeal recently considered in the case of Winterburn v Bennett whether a property owner can prevent third parties from acquiring rights of way over their land by way of prescription by simply placing notices/signs on the property.

Third parties can obtain a right by way of prescription over another’s land if various conditions are satisfied and such use has been exercised for more than 20 years without objection.  

In the Winterburn case, the patrons and suppliers of a fish and chip shop had parked cars and vans in a car park owned by a third party for many years. This use continued from 1992 and the fish and chip shop owner then claimed that his property had obtained this right by law under the rules of prescription. However, up to 2007 there had been a sign at the entrance of the car park stating that it was a private car park and for use by members of the owner’s adjoining club only. This sign was clearly visible to anyone entering the car park on foot or by vehicle.  There were also notices clearly displayed in the windows of the club.

Ultimately the fish and chip shop owner’s claim was unsuccessful. The Court of Appeal held that as the land owner had made the position very clear through visible signs, the unauthorised use could not be “as of right”. There was no obligation on the owner of the car park to take further steps such as writing letters or even confronting the users verbally or taking formal legal proceedings. Generally most people avoid confrontation for fear of reprisals. The court held that confrontation should not be required for people to retain or defend their property unless it is absolutely necessary.

This case is good news to land owners where third parties are regularly using their property without permission. As long as the land owner makes their position clear with regards to that unauthorised use by erecting suitably clear signage that the land is private and not to be used by others, then the Court of Appeal cannot see how those who choose to ignore such signs can be entitled to rights over that land by law.