What’s the deal with Winterburn?

What on earth has a car park behind a fish and chip shop in Keighley got to do with Stoke Lodge? Well, we discussed in a previous post how a Court of Appeal decision about that car park caused the Inspector to change his mind in TVG1 and to recommend that Stoke Lodge shouldn’t be registered as a village green.

The issue is this: if a landowner puts up signs declaring that land is private, that can have the effect of making informal use of that land contentious or not ‘as of right’. But to have that effect, signs have to meet certain conditions – for example, they have to be clearly worded; they have to be put up in the right places (so that users see them); and there have to be enough of them. The core question is whether the landowner has made clear its ongoing objection to informal use by local inhabitants.

The Winterburn case itself involved a small car park for 7 cars, with one entrance and two visible signs that said ‘Private car park. For the use of Club patrons only’. In some ways it was an easy case – there was no issue about the wording of signs being unclear, and there was no issue about whether there were enough signs – you couldn’t get into the car park without seeing them.

The key quote from the case, on which the Inspector focused in TVG1, was: ‘In circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be “as of right”… I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps…’.

The question that the Winterburn case didn’t ask or answer is – what happens if the landowner, having put up signs, then acts inconsistently with them over a period of decades? What if its employees chat amicably on a day to day basis with people walking dogs on the land, even though the signs say you can’t do that? What if the landowner gives a statement to the local press saying it intends to put in a kissing gate at one entrance, to discourage motorbikes but allow easy access on foot? What if the school using the land instructs its maintenance contractor that ‘the land is open, at present, to the public and dogs’? The list goes on – see our post ‘13 ways the Council and Cotham School showed they didn’t object to informal use‘.

The point is that the landowner is, by those actions, indicating that it doesn’t actually object to informal use. It is contradicting the signs, so it isn’t making any continuing objection clear. Winterburn tells us that if the signs are enough by themselves, then a landowner isn’t required to take further steps – but it simply doesn’t address a situation where the landowner is actively, by its conduct, contradicting its own signs. Nor does it cover a situation where the current landowner (Bristol City Council) never puts up any signs of its own, but there are signs left behind by a previous landowner (Avon County Council) – and the new owner is acting inconsistently with those.

The Inspector didn’t have to consider those issues specifically in TVG1, though he said that based on the Council’s conduct alone, without the signs, he would have said it was a ‘classic case of acquiescence’. There is much more evidence before him in these applications showing that acquiescence in great detail, as recorded in formal documents. That includes evidence that:

• the signs were ambiguous (read more here) and were intended as a warning rather than a prohibition;
• there weren’t enough signs – only two of them, on a site that is 200 times larger than the Winterburn car park, with dozens of formal and informal entry points plus residential back gates directly onto the field (read more here); and
• the Council and the School acted inconsistently with them from at least January 1990 onwards – so how is it possible to say that any clear objection to informal use was conveyed to local residents?

The High Court commented in 2018 that it was ‘not controversial’ to suggest that the situation at Stoke Lodge is very different to the Winterburn car park. Frankly, it’s obvious – below is an aerial view of Stoke Lodge with an overlay of the car park, to scale. And in December 2016, the Public Rights of Way and Greens Committee thought that the difference was obvious too.

But it’s not just the difference in size and the lack of any signage at the vast majority of entrances that makes our case different. The Winterburn decision states that ‘the circumstances must indicate to persons using the land that the owner objects and continues to object‘ to informal use. If you stick up a sign and then spend years actively indicating to everyone that they are welcome to use the land, then your objection to that use isn’t clear – in our case, it never was!