Parties to litigation
The case of Winterburn v Bennett involved the appellants Mr. and Mrs. Winterburn who owned a fish and chip shop in Keighley, West Yorkshire. They had owned a 20-year lease on the property the shop was located until 2007 when they registered as freehold proprietors. They were in dispute with the respondents Mr. and Mrs. Bennett, who owned the carpark and other social facilities on the same land in dispute. The property was bought from the Conservative Club Association (Club) in 2010 and was let to a tenant in 2012, who then obstructed access to the carpark.
If the case had gone against the respondents, the Club would lose valuable space in their car park that allows a greater number of member’s access to the Club. In…show more content…
Legal Issues Involved
The central issue is primarily concerned with the steps an owner of a piece of land must take to prevent others using the land without their permission. More specific to this case, whether the signs put up by the respondents were sufficient to prevent the appellants from acquiring an easement by prescription to use the car park for themselves, suppliers and customers, and whether the owners had acquiesced such use as to entitle the appellants to such right. LJ Richards clarifies the ‘appeal is not concerned with pedestrian access but only with parking of cars…’.
To assist in his judgement, LJ Richards reviewed the ratio and relevant case law from both the First-tier Tribunal (FTT) and Upper Tribunal’s (UT) decisions. Judgement in the first instance at the FTT, held the appellants had established their claim to parking rights on acquisition by prescription by ‘lost modern right’. Essentially stating, their legal position to acquire rights depends on whether the appellants could show they had operated as a business, without interruption for no less than twenty years ‘as of right’, that being without force, secrecy, and permission as per the Prescription Act 1832. Also, known as nec vi, nec clam and nec precario, respectively. Nevertheless, the UT allowed the appeal against the FTT’s decision.
However, in the present