Winterburn and Another v Bennett and Another: CA 25 May 2016

The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the defendant’s ownership, using it exclusively as a car park for their shop customers.
Held: The claimants’ appeal against rejection of a claim to use for more than 20 years giving rise to a presumption of lost modern grant failed. The signs had been continually present, and now in the context of commons registration, the signs were enough to defeat the claim. ‘The situation which has arisen in the present case is commonplace. Many millions of people in this country own property. Most people do not seek confrontation, whether orally or in writing, and in many cases they may be concerned or even frightened of doing so. Most people do not have the means to bring legal proceedings. There is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs. The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land.’

Sharp, David Richards LJJ, Moylan J
[2016] EWCA Civ 482, [2016] WLR(D) 297
Bailii, WLRD
England and Wales
CitedDalton v Henry Angus and Co HL 14-Jun-1881
The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some . .
CitedNewnham v Willison CA 1987
Kerr LJ considered the exercise of an easement over land (a sweep of a curve over a driveway) by force, saying: ‘In my view, what these authorities show is that there may be ‘vi’ – a forceful exercise of the user – in contrast to a user as of right . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
CitedTaylor v Betterment Properties (Weymouth) Ltd and Another CA 7-Mar-2012
The respondent owned farmland over which public rights of way were claimed. . .
CitedBarkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
CitedEaton v The Swansea Waterworks Company 5-Jun-1851
Case for disturbing a watercourse which of right ought to flow into plaintiff’s close to irrigate it, On the trial it appeared that the watercourse was not ancient, but that the water had flowed in its present muree for more than twenty years, past . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 10 November 2021; Ref: scu.564718