Fight For Your Right Of Way - Bennett v Winterburn (2015)

Summary

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.

Facts

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.

First instance

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 [2002] 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...