Car parking: display or pay!


Author: Amanda Hado-Bodfield


Summary

The owner of a shop claimed rights to park on an adjoining car park on the basis that it had acquired rights to do so over a period of 20 years’ use. As the car park owner had maintained clearly visible private car park signs, these were indicative of its continuing objection to unauthorised parking and were enough to stop the shop owner acquiring rights.

Facts of the case

The issue arose in a Court of Appeal case[1] relating to a dispute between the owners of a fish and chip shop and an adjoining social club.

For over 20 years, suppliers making deliveries to the fish and chip shop parked their vehicles in the social club’s private car park. Likewise, customers of the fish and chip shop parked in there when they bought their fish and chips.

The social club had never given express permission for this parking and had made some complaints about obstruction.  There were two signs displayed that were clearly visible from the car park. One was in the window of the social club and the other was on the wall of the building on one side of the car park entrance stipulating the following:

“Private car park.  For the use of Club patrons only. By order of the Committee.”

Issues
  • What steps must the car park owner have taken to stop the fish and chip shop owner from acquiring rights to park without permission?
  • Was the display of the signs sufficient to stop rights being acquired by long term use?

For the shop owner to show he had acquired rights to park by way of “long term use” (i.e. by prescription) he had to show 20 years’ uninterrupted use as “of right”, meaning using the car park openly and not in secret, without the owner’s permission or obstruction and not through force.

Commentary

In this case the parking was open and known to the club and no permission had been given. The shop owner had to show that the parking was not contentious or allowed only under protest.  In deciding the meaning of “protest” the court said that the owner did not have to obstruct physically the car parking nor did it have to bring legal proceedings to stop further parking.

The court had held in a previous 2012 case[2] that the continuous presence of legible and visible signs had been sufficient to stop privately-owned land becoming a village green.   The signs in that case rendered the use of the land by the public “contentious”.  The court decided that the same principles applied to the acquisition of private property rights by long use.

In the fish and chip case there were two visible signs clearly informing all users that it was a private car park for the use of club members only. These signs were sufficient to make the parking “contentious” and not “without force”.

The presence of signs clearly indicated the club owner’s continuing objection to unauthorised parking. The signs were a proportionate protest. Anyone reading the signs would understand their meaning and effect; that persons other than club patrons were not allowed to park there.

Where a landowner made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land could not be said to be “as of right”. Those who chose to ignore such signs should not thereby be entitled to obtain legal rights over the land.

Therefore, the signs were sufficient to prevent the shop owner from acquiring legal rights to park.

Conclusion

If you have concerns about a third party using your land for access purposes or parking without your permission you should act without delay.  Erecting and maintaining clearly visible signs may be a quick and inexpensive solution.

If you want to discuss how to protect yourself against third party rights, do contact me.

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[1] Winterburn and another v Bennett and another [2016] EWCA Civ 482, 25 May 2016 Court of Appeal

[2] Betterment Properties (Weymouth) Ltd v Dorset CC [2012] EWCA Civ 250

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Amanda Hado-Bodfield, Senior Associate, Fladgate LLP (ahado-bodfield@fladgate.com)

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