Establishment of a Legal Right of Access

When a Conservative club objected to customers of a neighbouring chip shop making unauthorised use of its car park, the owner of the chip shop argued that the car park had been used by the shop’s customers and suppliers for many years and that the continued use without opposition by the club had led to the establishment of a legal right of access.

It was salient that at no point in the past had the club made any attempt to enforce its right to restrict the use of the car park to its members.

The argument ended up in court and the decision of the lower court in favour of the owner of the chip shop was appealed. The Upper Tribunal (UT) reversed the decision, largely on the ground that a notice had been visible in a prominent position in the car park for many years which read: “Private car park. For the use of patrons only. By order of the committee.”

However, the UT did conclude that the notice was insufficient to deny the chip shop owner the right of pedestrian access over the car park for its suppliers and customers.

The right to appeal the decision to the Court of Appeal was granted, so this may well not be the end of the matter.

However, the case makes it clear that if you have issues with others making use of your land, you should take appropriate steps to ensure that a right of access is not allowed to arise. Whilst a notice is one such step, there are other, more positive measures which can be taken to prevent loss of your rights over your land.

Rex Cowell