A recent appeal in the case of Winterburn v Bennett has failed, demonstrating that clear, prohibitory signage will prevent a prescriptive easement from being granted, excluding unauthorised users from claiming a right of way over land.

The disputed land was a car park which was part of the local Conservative Club. The owners and customers of an adjacent fish and chip shop had used the car park for more than 20 years. The fish and chip shop owners stated that they were entitled to a prescriptive easement on the basis of ‘lost modern grant’, as they had 20 years of uninterrupted use “as of right”; without force, without secrecy and without permission.

The Club owners argued against the easement, stating that it was contrary to a sign that read “Private car park. For the use of club patrons only. By order of the committee”.  This sign was clearly visible to those who entered the car park from the road. Despite this signage, the owners and customers still used the car park, choosing to ignore the sign, and no further attempts had been made to restrict access.

The Court of Appeal held that prohibitory signage will prevent the use of land being classified “as of right”, as ‘use without force’ means that the use of the land has not been made contentious by objections. Therefore, if the landowner has made his objections clear by erecting clearly visible signs, the unauthorised use of land cannot be held to be ‘as of right’, and as a result of this the fish and chip shop owners were not held to have acquired a prescriptive easement.

This failed appeal will likely be welcomed by landowners, who are now aware of the relatively simple step of producing ‘clear prohibitory signage’ that they can take in order to prevent others from claiming a right over their land. The case does, however, also offer a warning, as the decision of the Court of Appeal related only to parking rights. The signage only related to the parking of cars in the car park, therefore it did not prohibit access to the shop by foot, thus showing the importance of ensuring that all the necessary steps are taken to prevent acquisition of rights of way by prescription.

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