Rights of way round-up: obstructing and objecting
Tuesday 28th June 2016
There have been two recent cases on rights of way. Samantha Nickson explains the points you need to know:
1: Page v Convoy Investments Limited  EWCA Civ 1061:
In this case, the Court of Appeal addressed the correct approach for determining whether a gate constituted a substantial interference with a right of way.
Mr Page purchased a plot of land from Convoy Investments Limited’s (“Convoy”) predecessor in title. This land had the benefit of a right of way over a road on Convoy’s land which led to the highway. At the time the right was granted, a fence was in place with a gate that was not operational and was therefore continuously left open. In 2011, Convoy replaced the dilapidated gates with electronic gates that could be operated by a fob or a code input on the gates. Mr Page felt that these gates were a substantial obstruction to the reasonable use of his right of way.
The Court in the first instance agreed with Mr Page. Convoy had argued that, as there were gates at the time the right was granted, although ineffective, Mr Page could not object to gates of any kind. The Court of Appeal agreed with the original judgment and said it was not helpful to consider a hypothetical test where ineffective gates could have been replaced by working gates. The correct test is to consider the position at the grant of the right of way with the position now; in this case an open entrance versus one which is gated. The Court’s opinion may therefore have been different had the gates at the time of the grant been operational.
- This appears to be onerous for land owners in that a less “convenient” set of gates or security (which may be necessary), could interfere with a right of way.
- Land owners will need to be careful to ensure that any improvements to security do not create an obstruction that will be a substantial interference with the right. It may be best to agree any changes with users in advance.
2: Winterburn v Bennett  EWCA Civ 482:
Any landowner with an easily accessible “Customers Only” car park will not always know whether every car parked there belongs to a customer or a patron. Do you have to go to court to prevent trespassers becoming entitled to park? Do you have to introduce more stringent security? The Court of Appeal has answered this question with a resounding “no”.
The case has a distinctly Yorkshire flavour, as it is all about a fish and chip shop in Keighley. Customers and suppliers of the chippy had been parking in an adjacent car park for over 20 years. The car park didn’t belong to the chippy though; instead it was owned by the local Conservative Club and the Club had put up a clearly visible sign saying: “Private car park. For the use of Club patrons only.”
In order to convert 20 years’ use into a legal right, the use has to be “without force, without secrecy and without permission”. Clearly the chippy did not have permission to use the Club’s car park and it was not being secretive about using it.
Had the car park been used with force though? You might think that just driving into a car park is not exactly forceful, but the Court of Appeal addressed whether parking on private land in contravention of a clearly visible sign could be interpreted as a kind of “force”.
The Court of Appeal decided that the presence of a clear and visible sign was enough for the chippy’s use of the car park to be forceful and therefore no legal right was acquired. The judge emphasised that a land owner should not have to go to court to prevent wrongful users of land from acquiring rights.
- If you own a car park, which may be susceptible to unauthorised parking, make sure your signage is clear and easily visible. This should protect you against any unlawful users acquiring rights. Are your signs in the right place and are there enough of them?
- Other measures can control use of car parks where unauthorised use is affecting trade, such as automatic number plate recognition or ticketed barriers.
- Clear signage is also very important if you are charging for parking or imposing fines/penalties for unlawful use. If the signs cannot be seen, penalties may be unlawful.