Out-Law News 3 min. read

Court of Appeal: presence of 'private parking' signs enough to prevent acquisition of parking rights with long use


It was enough for the owners of land used as a private car park to display signs to that effect, in order to prevent nearby shop owners acquiring parking rights through 20 years uninterrupted use "as of right", the Court of Appeal has ruled.

In a unanimous judgment, the court ruled that the landowner had "made his position entirely clear through the erection of signs", and that there was no need for the owners to take "more potent steps" when the signs were ignored.

Giving the judgment of the court, Lord Justice Richards said that he "reject[ed] the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings".

"The situation which has arisen in the present case is commonplace," he said.

"Many millions of people in this country own property. Most people do not seek confrontation, whether orally or in writing, and in many cases they may be concerned or even frightened of doing so. Most people do not have the means to bring legal proceedings. 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," he said.

"The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land," he said.

The occupiers of a fish and chip shop in Keighley, West Yorkshire, had attempted to argue that they had acquired the right to use a car park formerly belonging to the local Conservative club by prescription, a legal doctrine which refers to continuous, uninterrupted use as of right for a period of 20 years. For the acquisition of all forms of easements by prescription, the usage must be "as of right" which means without force, without secrecy and without permission.

There was no dispute that suppliers and customers of the fish and chip shop had used the car park since the shop opened in 1987, right up until access to the space was blocked in 2012. However, they did so while ignoring signs that stated "private car park, for the use of club patrons only", which were displayed both on the side of the Conservative club building and in the window of the premises "at all times until 2007", according to the court.

The court found that there was "no doubt" that the use of the car park was "open and known" to the club, and to the subsequent purchasers of the land who had blocked access to the car park. This left only the question of whether the use had also been "without force". This phrase "carries rather more than its literal meaning", and requires the usage to be "not contentious or allowed only under protest", according to the court.

Lord Justice Richards said that the presence of the signs was enough to make the use of the car park "contentious". The signs "clearly indicated the owner's continuing objection to unauthorised parking" and were a proportionate form of protest, he said.

"Any reasonable person, whether in the position of the owner of the land or those unlawfully parking on it, would understand the meaning and effect of the signs to be that persons other than the club's patrons were not allowed to park on the car park and should not do so," he said in his judgment.

The court rejected arguments that the owner had to engage in "continuous and unmistakable protest" to avoid acquiescing to the acquisition of an easement, or that it made any difference whether the signs were erected prior to or after the unlawful parking commenced.

"Given any doubts about whether a right to park could constitute an easement were dispelled by a decision of the courts in 2007, this decision provides welcome news for landowners who can now be sure that the relatively inexpensive step of erecting signs making it clear the land is private land and not to be parked on will suffice to prevent any prescriptive right to park arising," said property disputes expert Siobhan Cross of Pinsent Masons, the law firm behind Out-Law.com. "It will not be necessary for them to engage in legal action or other protest against the unlawful parking to prevent such rights."

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