Fight for your right…of way Bennett v Winterburn  UKUT 59 (TCC)
31 May 2016
A right of way can be acquired even where the relevant use of the neighbouring land is by a third party rather than the landowner. There is no minimum test to satisfy to render use contentious. The fact that the servient owner could have taken additional steps to object to the parking was irrelevant.
This case concerned adjacent properties used by a Conservative Club and a fish and chip shop. The chip shop owners’ customers accessed the shop by walking across the Conservative Club’s car park and they also parked vehicles there, despite the presence of signs stating: “Private car park. For use of club patrons only. By order of the committee”. For some of the period, the Club’s steward had remonstrated with the chip shop owners about the parking by their customers.
The First-tier Tribunal found that rights of way and parking had been acquired by the chip shop owners over the Conservative Club’s car park.
It noted that Smith v Brudenell-Bruce  2 P&CR 4 laid down a minimum test to be satisfied before a use becomes contentious (so as to prevent a party from acquiring a right), namely that “a user is contentious when the servient owner is doing everything consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.” In the Tribunal’s view, the Conservative Club failed to satisfy this test; the notices were inadequate to render the use of the car park contentious because they predated the arrival of the chip shop owners and were not specifically directed at them.
Decision on appeal
The Upper Tribunal found that there is no minimum test to satisfy in order to render use contentious. Accordingly, there is no requirement for the servient owner to do everything consistent with his means and proportionality to interrupt the user. In this case, it was irrelevant that the signs predated the chip shop owners’ arrival and were not specifically directed at them; the signs were directed at the world at large, which included the chip shop owners and their customers.
Parking vehicles in the car park was therefore contentious and so no vehicular right of way had been acquired by the chip shop owners. (As the signs only related to parking, the parties agreed that pedestrian access across the car park was not made contentious by them and that the appeal should be dismissed as to whether a pedestrian right of way had been acquired by prescription).
The chip shop owners' appeal against this decision was dismissed in May 2016.
This article was written by Emma Humphreys.
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