Landowners and contentious rights of way

An issue which arises on a relatively frequent basis for solicitors acting on behalf of landowners concerns the circumstances in which rights of way can be acquired over another person’s land. A recent case has provided some further guidance on this area of the law.

The case in point concerned customers of a fish and chip shop in West Yorkshire who used an adjacent car park which was owned by the local Conservative Club. Customers of the shop regularly ignored two clear notices erected by the Club, stating “Private car park for the use of patrons only, by order of the Committee.”

Eventually, the chip shop owners claimed that they had acquired rights to walk over and park on the Conservative Club’s forecourt as the practice had been going on for more than 20 years without complaint save for an occasional remonstration which had been made to the chip shop owners by the Club’s steward.

The Upper Tribunal (the relevant Court hearing the case) decided that there was indeed a pedestrian right of way acquired by the law of prescription, but there was no vehicular right of way due to the notices which prevented such a right from arising.

The Appeal Judge who heard the case held that the Conservative Club’s notices were effective to tell the whole world, including both the chip shop’s customers and its suppliers, that the Club objected to non-members parking on the forecourt.  Unfortunately, the notices were too brief and failed to refer to persons walking over the Club’s forecourt.

Cases of this sort always tend to depend on their own facts, but particular points to bear in mind are as follows:

• Signs erected by landowners should be clear and comprehensive. In the case mentioned above, the signs were sufficient to prevent vehicular access, but not access on foot.
• Because of the uncertainty in this area of law, it is unwise simply to rely on notices and it is advisable to consider other ways of protecting land, such as occasionally closing access gates or erecting fences.
• If there is an unauthorised use taking place then that use should be challenged. It would be wise to write to the offending neighbour as well as considering whether to commence legal proceedings. A further option would be to fix stickers to offending cars.

A version of this article appeared in Business East on 8 August 2015.

If you need advice, the friendly and experienced solicitors at Barker Gotelee are on hand to help. Call the team on 01473 611211 or email [email protected]