During the course of his review of the law of prescription in R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 EGLR 94, the virtually infallible Lord Walker had this to say about the erection of signs by landowners: “A landowner who puts up a notice stating ‘private land – keep out’ is in a less strong position, if his notice is ignored by the public, than a landowner whose notice is in friendlier terms: The public have permission to enter this land…”.
The thinking behind this counter-intuitive dictum was that prescriptive rights cannot arise where the landowner permits the prescriptive activity, because prescription pre-supposes an absence of permission: the prescriber is carrying on his activity as if he had the right to do so – not because he had the right to do so.
Correspondingly, if a “keep out” sign is erected but ignored, that might be said (or so Lord Walker evidently thought) to make the prescriber’s activity all the more obviously something that the landowner was not permitting.
So: if you want to prevent prescriptive rights arising, a notice saying “do come in” would be fine; but a sign saying “don’t come in” would not.
Lord Walker’s dictum caused a certain amount of anxiety at the time on the part of landowners who were keen to prevent prescriptive rights arising. If they were averse to putting up “friendly” signs, and if “unfriendly” signs did not do the job either, then what were they to do?
The unsatisfactory answer that appeared for a while to lay down what should be done appeared in the judgment of Pumfrey J in Smith v Brudenell-Bruce [2001] EWHC Admin 504; [2001] PLSCS 161. In that case, the claimant successfully asserted a right of way by prescription over a track on the defendant’s land. In his judgment, the judge made a number of obiter remarks about what the landowner should do in such circumstances to make the use contentious – ie not “as of right”.
He said that the owner should indicate that he actually objects and continues to object, “and will back his objection either by physical obstruction or by legal action”. He continued: “A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interpret the user.”
Keep off the grass
These obiter remarks were tested and found wanting in Taylor v Betterment Properties (Weymouth) Ltd [2012] EWCA Civ 250; [2012] PLSCS 53, a commons registration case. It concerned 46 acres (19 ha) of former grazing land, crossed by two public footpaths, which had been registered as a town or village green.
The landowner had repeatedly erected and re-erected clearly visible signs,
stating that the land was private or that the public were to keep out or that their presence would be a trespass, making it plain that the public were not entitled to go on to the land other than by using the footpaths. The signs had been repeatedly vandalised and removed by some members of the public, with the result that they had not been seen by other members of the public.
The landowner succeeded. Giving the principal judgment, Patten LJ said: “If the landowner erects suitably worded signs and they are seen by would-be peaceable users of the land then it follows that their user will be contentious and not as of right.”
In the face of the signs it was obvious that their acts of trespass were not acquiesced in. Further, it was not necessary for the landowners to take other action, of the sort mentioned by Pumfrey J, to manifest their contention.
Keep off the car park
Similar issues arose, but this time in the context of a claimed prescriptive right to park, in Winterburn v Bennett [2016] EWCA Civ 482; [2016] PLSCS 154. It was common ground that the same principles applied. The case concerned a car park, adjacent to which was a club in the same ownership, and a fish and chip shop belonging to the claimants, whose customers and suppliers had parked on the car park for longer than 20 years. Throughout that period, there were two signs clearly visible to all users of the car park informing them that it was a private car park for the use of club patrons only. The signs were never vandalised or, until 2007, removed.
The Court of Appeal found that this was a straightforward case: the presence of the signs clearly indicated the owner’s continuing objection to unauthorised parking. Although the court accepted that the landowner’s protest needed to be proportionate to the offending use, the continuous presence of the signs asserting that it was private property for use by the club’s patrons only was a proportionate protest.
The court dismissed the submission that in the face of parking by those not entitled to do so, there should have been additional signs ordering such parking to cease, or letters to the transgressors, or yet more potent steps leading ultimately to the commencement and the prosecution of legal proceedings. It was unnecessary for the owner, having made his protest clear, to take the further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings.
So – are “keep out” signs safe?
Pretty much so, with the following caveats.
First, the signs should be proportionate to the use – if the land in question is substantial, with multiple points of entry, just one sign will not be good enough.
Secondly, the signs should be visible to the users, and clear – a badly positioned sign or a defaced or faded sign will not suffice.
Thirdly, it must be obvious that the sign is current and not an old relic – a mossy stone will probably not be adequate either. Subject to those caveats, signs work.
As the Court of Appeal said: “I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land.”
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
