how to stop prescriptive easement uk

Landowners will take comfort from the recent Court of Appeal decision in Winterburn v Bennett [2016] where it was held that a sign declaring that land can only be used by authorised persons can prevent the registration of a prescriptive easement.

The background

Trespassers can claim a prescriptive easement over land where they have used it to benefit their own land “as of right” over a 20 year period.  Prior to the Winterburn decision, the leading case on Landlords’ requirements to prevent such registration was Smith v Brudenell Bruce [2002].  The decision in that case placed a relatively high bar on the landowner to do “everything consistent with his means and proportionality to the user, to contest and to endeavour to interrupt the user”.

The Winterburn case

The Winterburn case involved the owners of a fish and chip shop whose customers and suppliers, over a period of 20 years, regularly parked in and used a car park belonging to the adjoining conservative club.  There were visible signs in the car park that stated it was private land and for the use of conservative club members only.  The owners of the fish and chip shop claimed a prescriptive easement over the car park.  It was held by the Court of Appeal, following authorities in recent cases, that if a “no parking” sign is visible to wrongful users of the car park, the landowner will have made his intentions clear and the unauthorised use of that land by the trespasser cannot be said to be “as of right” and therefore the claim to a prescriptive easement fails.


The decision in Winterburn is significant because it suggests that simply erecting clear signage stating that land is private and can only be used by authorised persons will be sufficient to prevent a prescriptive easement being claimed over the land.  It is arguable that this decision could also be applied to land owners defending a town or village green application (which has the same criteria of land being used “as of right”).  Whilst this decision will be welcome news for land owners who would be well advised to put up and maintain signs at appropriate places on their land, prudent land owners should continue to treat good signage as a minimum requirement and should continue to take steps to prevent any unauthorised use of their land.