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The parking of cars should be a simple matter and as long as you avoid double yellow lines, over staying your meter, or not paying and displaying, then you should be able to do a spot of shopping without actively breaking the law.
But unfortunately, it can be much more complicated, with the issue of disproportionate fines being levied far too easily for the ‘offence’ of ‘illegally’ parking on private land, stealing the headlines and often being the subject of TV documentaries.
The stories however, ignore the recourse which landowners do or do not have when they find people parking without permission on their property. And as is often the case, the law has tended to swing between protecting landowners and being fair to motorists
The Protection of Freedoms Act 2012 was intended to mark a shift away from over intrusive ‘surveillance state’ policies, which with regards to parking issues, offered protection to motorists from the actions of unscrupulous parking enforcement companies.
At the time of the Act’s introduction, the enforcement companies had seemed free to take action such as clamping vehicles for even the most minor perceived parking infraction, which typically involved clamping cars and refusing to release them until a punitive fine had been paid.
Designed to protect motorists from being unfairly clamped, it had the simultaneous and perhaps unexpected effect of putting land owners at risk of people parking on their land without authorisation.
To the lay person it may simply seem to be common sense that a motorist can’t park on someone else’s private land without permission, but the law is actually more complicated than this.
In legal terms, if an individual uses another person’s land without permission but in an open manner and without the use of force then, after a period of 20 years, they can apply to the Land Registry to ask for the legal right to continue using this land in perpetuity.
This kind of action, referred to as ‘acquiring an easement by prescription’, usually applies to a specific right of way through land, but the 2016 case of Winterburn v Bennet, demonstrated that it could also be used to apply to parking on private land, as well as demonstrating the steps which could be taken to effectively negate the risk.
Writing on the wall
The case revolved around a chip shop owned by Mr and Mrs Winterburn, which was next door to a Conservative Club.
Over a period of 20 years visitors to the chip shop, parked in the Conservative Club car park without permission, despite a steward asking them not to and a sign next to the entrance to the car park, reading: ‘Private Car Park – For the use of Club patrons only – By order of the Committee.’
A similar sign was visible in the window of the club. Both sides in the case agreed that these signs had been ignored, but the Winterburns claimed their continued parking on the land granted them the ‘easement by prescription’ mentioned above.
The Club, on the other hand, argued that the land had been used in a ‘contentious’ manner, because the signs had been ignored and therefore the Winterburns and their customers had used force to gain access to the land.
The Winterburns’ defence to this claim was that they had ignored the signs and warnings for such a period of time without the club writing to them to complain or gaining a court order to stop them, that the use of the land was rendered non-contentious.
To the relief of virtually anyone with enough space on their land for a car to be parked, the Court ruled that the presence of signs such as the Club displayed, even if those signs were ignored, was enough to show that the land should not be used by other people.
Don’t leave it to chance
One side issue which any landowner needs to consider is the fact that they should register their land at the Land Registry and ensure that the contact details, including the address for service kept by the Registry, are always up to date.
If not then a land owner risks the possibility of an application for prescriptive rights being made without them receiving notice of that application.
However, as expected, despite this win for the landowner, the legal pendulum appears to be swinging back in favour of parking motorists, with the introduction of the Parking (Code of Practice) Act, which passed into law earlier this year but regulations implementing it have not yet been promulgated.
It is hoped the new law will form the basis of an industry-wide Code of Practice; an official independent appeals service; and an independent ombudsman.
Clearly, if all of that comes to pass it will do a great deal to protect the interests of motorists, but the question arises whether, as has been the case in the past, a step designed to help motorists will have the effect of putting the rights of landowners at risk.
If that is the case, then we can expect this article to be revised with the inclusion of another landmark ‘motorist versus landowner or parking company’ case in the next few years.
If you are a landowner plagued by the issue of ‘illegal’ parking, please get in touch with Martin de Ridder, Head of Dispute Resolution here at Ansons. Martin can be contacted via email at: firstname.lastname@example.org