“THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY NO PUBLIC RIGHT OF WAY”
“53. I have no hesitation in concluding, on the basis of the evidence before me, that the Staircase was used for the benefit of the owners and occupiers of No 6 for a period of 20 years and more from no later than2 December 1996 . The user was as of right: for the reasons set out above it is not incumbent on the Applicants to prove that the relevant owners of No 4 had actual knowledge of the user. In my judgment, it would have been plainly obvious to the owner of the land, taking reasonable care, that it was being exercised. 54. Nor is it necessary, as also explained above, for the Applicants to prove that No 6 was not tenanted at the outset of the relevant period. 55. Mr Taylor submits that the owner of No 4 would not have known, or would not have necessarily known, that the Applicants and others visiting No 6 were in fact going to that property and not to another. Again, this seems to me to misunderstand the nature of the right of way claimed. It may be that other people on the terrace also had right of way: that does not affect the fact that the Applicants were exercising a right which would have been obvious to any reasonable owner. 56. The user was not occasional: it was consistent, and constant, both during the week and at weekends. The user was both by the Applicants and by people visiting the offices of French & Co: I accept entirely the evidence given by the Applicants on this point. 57. The fact that the Applicants were tenants of No 5, and later of part of No 4, is not relevant to the issue I have to determine. The right claimed arises in respect of the ownership of No 6 alone. In any event, I fully accept that the user of No 4 was limited to two rooms and on no occasion involved the use of the front door of No 4. 58. It was not argued that the right of way claimed falls foul of section 29 of the Land Registration Act. Again, this seems to be right. On the facts of this case, the Respondents were clearly aware of the use made of the Staircase by the owners of the various houses on the terrace at the time of purchase. The right would have been obvious to a reasonable purchaser. The Staircase clearly made access to some of the properties (including No 6) easier. The correspondence with the Council on this point fortifies my conclusions on this.”
“59. So far as the Sign is concerned, my conclusions are as follows. Although small, and although placed at a considerable height from the ground, the Sign in my judgment could be read by anyone going up the Staircase. However, the Sign does not prevent the acquisition of a private right of way. It unequivocally states ‘no public right of way’. The position would be entirely different if the Sign had said ‘No right of way’. But by limiting the prohibition to public use, it does not, in my judgement, affect the acquisition of a private right. The Sign is defining the type of right that it being prevented. The Staircase was not to be used by the public as an extension of the road. Stating that the property was private does not affect the outcome: rights of way are typically acquired over someone else’s private land.”
“61. In my judgment [this acceptance by Mr Taylor] is correct. The owner of the servient tenement cannot act in such a way as to render the easement incapable of being enjoyed, albeit that it is not incumbent on him to carry out repairs. It may then be that neither party is liable, if, at some point, the Staircase falls down or otherwise becomes so obviously unsafe that the right of way cannot be exercised. 62. But this is not the case here. The Staircase was removed over a weekend, without informing the Applicants or giving them any opportunity to consider whether or not the Staircase was in fact so defective that it was beyond any prospect of repair.”
“The learned Judge misdirected herself in that: 1. The height and position and small size of the sign was such that it was in fact not legible to a user of the staircase 2. She did not deal with the issue of why neither R1 nor R2 (who she held to be regular users of the stairs and forecourt land) could [not] recall ever seeing the sign during the course of use of the staircase over more than 20 years. 3. She held that the sign could be read by anyone going up the staircase even though there was no evidence before her of any past user of the staircase stating that they were aware of the sign and had read it while going up the staircase. In the circumstances this aspect of the Judgment should be overturned and replaced with a determination that the sign was too small and wrongly placed to be legible to a normal user of the staircase and that therefore the sign (irrespective of the wording) was incapable of preventing any prescriptive rights from accruing.”
“Although small, and although placed at a considerable height from the ground, the Sign in my judgment could be read by anyone going up the Staircase.”
“When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that, this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.”
“44. As to the Sign, Mr and Mrs Hale’s evidence is that it was small and difficult to read; the size of an envelope. It was placed 1.7/1.8 metres high on the wall to the west of the Staircase so that anyone walking up the Staircase would see it, if at all, once they were well on the way to the top. On their evidence, it was not easily legible, if at all, from the bottom of the staircase. In any event, the Sign clearly referred to a public right of way.”
“19 Part of this passage was cited with approval by Lord Neuberger of Abbotsbury PSC in R (Barkas) v North Yorkshire County Council[2015] AC 195 , para18. This passage and other passages in some of the older authorities suggest that the owner of the land must take steps by physical means or through legal proceedings to prevent the wrongful user. However, the passage cited from the opinion of Fry J ends with a reference to a right being “acquired and enjoyed by the tacit consent of the sufferer” and in a passage of the opinion of Bowen J, also cited in later cases, he said 6 App Cas 740, 786: “The neighbour, without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakable protests to destroy its peaceable character, and so to annul one of the conditions on which the presumption of right is raised: Eaton v Swansea Waterworks Co.” 20 Although this was said by Bowen J in the context of rights of support where active steps to interrupt the user would normally be wholly disproportionate, it has been cited in more recent cases as demonstrating a much broader proposition. See R (Lewis) v Redcar and Cleveland Borough Council (No 2)[2010] 2 AC 70 , paras 88—91, per Lord Rodger of Earlsferry and Newnham v Willison(1987) 56 P&CR 8 , 18, per Kerr LJ. In the latter case, Kerr LJ continued, at p 19: “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 once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious.” 21 In the light of the development of the authorities, it cannot now be said, even if it ever could, that to avoid acquiescence, the owner of the relevant property must take steps through physical means or legal proceedings actually to prevent the wrongful user.”
“22 The issue in the present case is whether the continuous presence of legible signs stating that the car park was private property and for use by the club’s patrons only was sufficient to render the use of the car park by the claimants and their suppliers and customers contentious. 23 The decision of this court in Taylor v Betterment Properties (Weymouth) Ltd[2012] 2 P&CR 3 (“Betterment”) establishes that the continuous presence of legible signs may be sufficient to render user contentious.”
“22. From those cases I derive the following principles: (1) The fundamental question is what the notice conveyed to the user. If the user knew or ought to have known that the owner was objecting to and contesting his use of the land, the notice is effective to render it contentious; absence of actual knowledge is therefore no answer if the reasonable user standing in the position of the actual user, and with his information, would have so known; (2) Evidence of the actual response to the notice by the actual users is thus relevant to the question of actual knowledge and may also be relevant as to the putative knowledge of the reasonable user; (3) The nature and content of the notice, and its effect, must be examined in context; (4) The notice should be read in a common sense and not legalistic way; (5) If it is suggested that the owner should have done something more than erect the actual notice, whether in terms of a different notice or some other act, the Court should consider whether anything more would be proportionate to the user in question. Accordingly it will not always be necessary, for example, to fence off the area concerned or take legal proceedings against those who use it. The aim is to let the reasonable user know that the owner objects to and contests his user. Accordingly, if a sign does not obviously contest the user in question or is ambiguous a relevant question will always be why the owner did not erect a sign or signs which did. I have not here incorporated the reference by Pumfrey J in Brudenell-Bruce (supra) to “consistent with his means”
“49. In my judgment the facts overwhelmingly pointed to the conclusion that under the principles referred to in paragraph 22 above and in particular looking at the notices objectively in context, they did not render the recreational user contentious. This is for the following brief reasons: (1) The notices were clearly directed to the paths nearby. The Inspector found that the notice at point B was referential to FP 111 and that at point C referred to FP111 and the Diagonal Path. They could not have referred to FP 80 as this was already a public right of way. Given those facts the obvious meaning to be ascribed to them was that those paths were not to, and did not, give rise to a public right of way; (2) There was no reason why they should be taken objectively to refer to recreational use of the Meadow as a whole. Mr George QC said that a sign referring to there being no right of way is not necessarily limited in its scope to a particular path and he gave the example of an open field with no paths on it at all. That may be so in that context but that is not this case. Here the notices were by paths and have been found as a fact to refer to them and there is a quite separate and distinct use of the Meadow which has nothing to do with the paths, or is only incidentally related to them, namely the general recreational user; here the notices only make sense if they relate to the paths and rights of way in relation to those paths. They are in fact silent as to any other use of the paths for example crossing them while walking the dog or “milling around” in their vicinity; (3) If the Authority had wanted to render user of the land as a whole contentious, it could and should have said so by using an appropriately worded notice; see the examples referred to by Sullivan J in paragraph 22 of Lewis (supra) or that used in the Oxfordshire case (supra), as referred to in paragraphs 20 and 21 above. The Inspector made this obvious point in paragraphs 369 and 384 of the Report. See also paragraphs 11 and 14 of Mr Deluce’s Response. And there would also have been many more signs, given the number of different access points, as can be seen from the photograph at p276AD; the fact that the users from HTRN may have concentrated on the entrance at point C is no answer to this argument; (4) There is in fact no body of evidence from users to challenge this interpretation of the notices. Mr George QC placed emphasis on the evidence of Mr Dunabin referred to at paragraph 36 above because he was from HTRN. But in fact he did not live there at the material time in 1989. On the other hand, Dr Salmon, whose evidence is referred to at paragraph 37 above, did. And if anything, his evidence supported Mr Deluce’s case not that of the Authority; moreover the Inspector was entitled to reject Mr Dunabin’s view of the sign in his determination of what he thought, objectively, it meant to the users in general. There is no challenge to any such rejection; (5) The form of notice here is a classic response to an application for the establishment of further public footpaths, bringing into play the evincing of a contrary intention for the purposes of s31 (1) and (3) of theHighways Act 1980 ; and see paragraphs 10 and 13 of Mr Deluce’s Response.”
“19. In R (Lewis) v Redcar and Cleveland Borough Council[2008] EWHC 1813 (Admin) Sullivan J had to consider the adequacy or otherwise of a sign erected on the owner’s land in relation to its user for recreational purposes as part of a claim that it be registered as a TVG. The notice said this: “Cleveland Golf Club Warning It is dangerous to trespass on the golf course”
“20. Sullivan J found that the local people using the land were aware of the notice. He then said this: “21. I accept that the wording of the notices should not be considered in the abstract. The surrounding context, including any evidence as to their effect upon those to whom they were directed, should also be considered. The response to a notice may well be an indication as to how it was understood by the recipient. Moreover, the notices should be construed in a common sense rather than a legalistic way because they were addressed not to lawyers but to local users of the land. 22. If the defendant was not acquiescing in the continued use of its land by local people for recreational purposes, it would have been very easy to erect notices saying, for example, "Cleveland Golf Club. Private property. Keep out" or "Do not trespass", followed by a warning "It is dangerous to trespass on the golf course". The fact that local users took umbrage at being described in the notices erected in 1998 as trespassers does not mean that those notices told them to stop trespassing, as opposed to warning them that if they continued to trespass it would be dangerous.... 23. In the present case there was no evidence before Mr Chapman that the erection of the notices in 1998 had any practical effect whatsoever, much less that it had, even temporarily, 'seen off' the use of the land by local people for recreational purposes. The witness who gave evidence about the notices, Mr Fletcher, said that they had been painted out on the night that they were erected. They were re−painted and re−erected three times and then the club gave up. In these circumstances, given the ambiguity and the wording of the notices (to put their possible meaning at its highest from the point of view of the defendant), no landowner in the position of the defendant could reasonably have concluded that by erecting those notices in 1998 it had made it sufficiently clear that it was not acquiescing in the continued use of the land for recreational purposes by local users..”
“21. By way of contrast in Oxfordshire County Council v Oxford City Council[2006] Ch 43 , the relevant sign read: Oxford City Council. Trap Grounds and Reed Beds. Private Property. Access prohibited Except with the express consent Of Oxford City Council”
“Private car park. For the use of club patrons only. By order of the committee”
“40 In my judgment, there is no warrant in the authorities or in principle for requiring an owner of land to take these steps in order to prevent the wrongdoers from acquiring a legal right. 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”
“41 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.”
“94. I now turn to the question of whether signs were erected and, if so, where they were erected, what they said and for what period of time they remained erected. I find without any hesitation that the Curtis family did erect and re-erect signs with reference to the total area of land which they owned. I find that this process of erecting and re-erecting signs continued for a period of years and was not a short lived affair. As to the location of the signs, there is sufficient evidence that there were clearly visible signs, and not just one or two of them, which would have brought home to a person using the registered land that the registered land was governed by such a sign. I also find that all signs which are relevant in this way would have made it clear that members of the public were being told they were not entitled to leave the footpaths. That was because the land apart from the footpaths was “private” or that the public were to “keep out” of that land or that their presence on the land would be “trespass”.”
“52 I agree with the judge that the landowner is not required to do the impossible. His response must be commensurate with the scale of the problem he is faced with. Evidence from some local inhabitants gaining access to the land via the footpaths that they did not see the signs is not therefore fatal to the landowner’s case on whether the user was as of right. But it will in most cases be highly relevant evidence as to whether the landowner has done enough to comply with what amounts to the giving of reasonable notice in the particular circumstances of that case. If most peaceable users never see any signs the court has to ask whether that is because none was erected or because any that were erected were too badly positioned to give reasonable notice of the landowner’s objection to the continued use of his land.”
“55 Similarly there can be no issue about the wording of the signs. They were clearly sufficient to indicate to the reasonable observer that the landowner wished people to keep to the footpaths and not to trespass on the registered land.”
“28. It follows that an appropriately and unambiguously worded and placed sign may have the effect of making what would otherwise amount to prescriptive user contentious. But the issue will be fact specific: it will depend, clearly, on who erected it, for what purpose, and its exact wording. The question is an objective one, based on what the sign conveys to a reasonable person: it does not depend on the subjective interpretation of either the dominant or servient owner.”
“59. So far as the Sign is concerned, my conclusions are as follows. Although small, and although placed at a considerable height from the ground, the Sign in my judgment could be read by anyone going up the Staircase. However, the Sign does not prevent the acquisition of a private right of way. It unequivocally states ‘no public right of way’. The position would be entirely different if the Sign had said ‘No right of way’. But by limiting the prohibition to public use, it does not, in my judgement, affect the acquisition of a private right. The Sign is defining the type of right that it being prevented. The Staircase was not to be used by the public as an extension of the road. Stating that the property was private does not affect the outcome: rights of way are typically acquired over someone else’s private land.”
“(2) The Upper Tribunal– (a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) if it does, must either– (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision.”
“The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right—in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period.”
“51. I agree that, on the arguments presented to us, the appeal should be dismissed for the reasons given by Lord Neuberger. Those arguments have proceeded on the footing that in effect the sole issue is whether the use of the recreation ground by local inhabitants has been “as of right” or “by right”, the latter expression being treated as equivalent to “by licence” (or “precario”) in the classic tripartite formulation (nec vi, nec clam, nec precario) as endorsed by Lord Hoffmann in the Sunningwell case. On that basis, I have no doubt that the use by the local inhabitants in this case was “by right” as Lord Neuberger has explained (para 20-29). 52. That would be sufficient to dispose of this appeal. However, since the underlying issue is of some general importance and as we are being asked to review the decision of the House in Beresford, I think it desirable also to look at the matter in a wider context. Before turning to the speeches in that case in more detail I shall make two more general points about the context in which the rights are here asserted.”
“58. The “as of right”/“by right” dichotomy is attractively simple. In many cases no doubt it will be right to equate it with the Sunningwell tripartite test, as indicated by judicial statements cited by Lord Neuberger (paras 15-16). However, in my view it is not always the whole story. Nor is the story necessarily the same story for all forms of prescriptive right. 59. This was a point made by Lord Scott in Beresford: “It is a natural inclination to assume that these expressions, ‘claiming right thereto’ (the 1832 Act), ‘as of right’ (the 1932 Act and the 1980 Act) and ‘as of right’ in the 1965 Act, all of which import the three characteristics, nec vi, nec clam, nec precario, ought to be given the same meaning and effect. The inclination should not, however, be taken too far. There are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous.” (para 34) 60. On the same theme he commented on the differences between public rights of way on the one hand and town or village greens on the other: “Public rights of way are created by dedication, express or implied or deemed. Town or village greens on the other hand must owe their existence to one or other of the three origins specified in section 22(1) of the 1965 Act… Dedication by the landowner is not a means by which a town or village green, as defined, can be created. So acts of an apparently dedicatory character are likely to have a quite different effect in relation to an alleged public right of way than in relation to an alleged town or village green.” (para 40) While I share Lord Neuberger’s reservations on other parts of Lord Scott’s speech, his observations on this point appear to me both valid and important.”
“61. Lord Scott’s analysis shows that the tripartite test cannot be applied in the abstract. It needs to be seen in the statutory and factual context of the particular case. It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole. This includes consideration of what Lord Hope has called “the quality of the user”, that is whether “the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right” (R (Lewis) v Redcar and Cleveland Borough Council (No 2)[2010] 2 AC 70 , para 67). Where there is room for ambiguity, the user by the inhabitants must in my view be such as to make clear, not only that a public right is being asserted, but the nature of that right. 62. This is not a live issue in most contexts in which the tripartite test has to be applied, whether under this legislation or otherwise, because there is no room for ambiguity. It was not an issue in Sunningwell itself, where the land was in private ownership, and there was no question of an alternative public use. Twenty years use for recreation by residents, the majority of whom came from a single locality, was treated as an effective assertion of village green rights.”
“131 It remains to consider what lessons can be drawn for the present case. In the absence of argument to the contrary we must proceed on the basis that Blundell v Catterall and Brinckman v Matley were rightly decided. It follows that public use of the West Beach during the relevant period cannot be attributed to a general public right to use the foreshore for recreational purposes. Leaving aside the arguments relating to the byelaws under the second issue, there are three possibilities: (a) some form of prescriptive or customary right (b) implied licence (as found by Lewison LJ) (c) trespass tolerated or acquiesced in by the owners (as found by the majority of the Court of Appeal).”
“134 Explanation (b) accords with the view of Lewison LJ in the present case[2014] QB 186 , 278. He said he thought that the foreshore should be treated as “a special case”, for a number of reasons: “128. . . . (i) The nature of the land is such that it cannot readily be enclosed. It would be wholly impractical to attempt to enclose it on the seaward side; and even on the landward side any attempt would be fraught with difficulty. (ii) Historically the foreshore has been Crown property (although there are private persons who derive title from the Crown) and the Crown would not, in practice, prevent citizens from resorting to the foreshore for recreational purposes. This has been the case since time immemorial, and in those circumstances it is not unreasonable to presume that the Crown has implicitly licensed such activities. (iii) Even where the owner of the foreshore does attempt to enforce his strict legal rights, there are serious impediments in obtaining an injunction. (iv) Although in theory it is possible to prescribe for rights over the foreshore or to establish a customary right, there is no case in the books where a recreational right over the foreshore has been established. (v) It would take very little, having regard to the nature of foreshore and the manner in which it is generally enjoyed, to draw the inference that use is permissive by virtue of an implied licence. “129. Even if this is not, on its own, an independent reason for concluding that the use of the foreshore in this case is precario, it does in my judgment provide the context in which the byelaws are to be interpreted.”
“135 I agree, but I would put the emphasis on the point (v). It is the character of the foreshore and the use which is traditionally made of it, without question or interference, which leads to the natural inference that it is permitted by the owners in accordance with that tradition. As I said in Barkas[2015] AC 195 , para 61 (referring to comments of Lord Scott of Foscote in Beresford[2004] 1 AC 889 , para 34): ”
“(6) Sometimes the issue is framed by reference to what a reasonable landowner would have understood his notice to mean -? that is simply another way of asking the question as to what the reasonable user would have made of it;”