Land registration – Easements – Signage – Respondents claiming acquisition of right of way by prescription over servient land – Appellants appealing against decision of First-tier Tribunal that wording of sign erected on servient land insufficient to prevent use as of right – Whether judge erred in law in deciding that claim to right of way established – Appeal allowed – Cross-appeal dismissed.
The appellants were the freehold owners of 4 Derby Terrace in Nottingham. The respondents were the freehold owners of 6 Derby terrace, next door but one.
The terrace, built in the 1830s, was Grade II listed. Each property was three storeys. The ground floors were at an elevated level, in relation to the public highway. The basement of each property was on the same level as the road.
In September 2021, the respondents applied to the Land Registry for registration of a right of way over an area at the front of 4 (the servient land) on the basis that they had acquired the right of way by prescription.
The appellants argued there was a sign adjacent to an open set of steps, or staircase, which prevented the acquisition of a right of way by prescription and read: “This staircase and forecourt is private property. No public right of way.” The Land Registry referred the application to the First-tier Tribunal for determination.
The FTT found that the servient land had been used for the benefit of the owners and occupiers of 6 for 20 years and more from no later than 2 December 1996. Although the sign would have been visible to, and could be read by, anyone going up the staircase, the wording of the sign was insufficient to prevent the acquisition of a private right of way. The appellants appealed. The respondent cross-appealed.
Held: The appeal was allowed. The cross-appeal was dismissed.
(1) The FTT did not go wrong in its finding that the sign could be read by anyone going up the staircase, either as a matter of fact or law. On the evidence, the Upper Tribunal would have reached the same conclusion and there was no basis for making its own determination of the legibility of the sign, independent of the fact that its own determination would have been the same. Nor was there any basis on which to remit the question for further determination.
(2) Where an easement was claimed on the basis of prescription, the relevant use had to be user as of right, not by force, in secret or by permission. The fundamental question was 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 was effective to render it contentious; absence of actual knowledge was no answer if the reasonable user standing in the position of the actual user, and with his information, would have so known.
Evidence of the actual response to the notice by the actual users was thus relevant to actual knowledge and might also be relevant to the putative knowledge of the reasonable user. However, evidence as to what the owner subjectively intended to achieve by the notice was strictly irrelevant. In and of itself it could not assist in ascertaining its objective meaning.
(3) The nature and content of the notice, and its effect, had to be examined in context. The notice should be read in a common sense and not legalistic way. If it was 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 had to consider whether anything more would be proportionate to the user in question. The aim was to let the reasonable user know that the owner objected to and contested his user. Accordingly, if a sign did not obviously contest the user or was ambiguous, a relevant question would always be why the owner did not erect a sign or signs which did: Newnham v Willison (1987) 56 P&CR 8, R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94, R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 1 EGLR 153, Taylor v Betterment Properties (Weymouth) Ltd [2012] 2 P&CR 3, R (Barkas) v North Yorkshire County Council [2014] 2 EGLR 115; [2014] EGILR 33 and Winterburn v Bennett [2016] EGLR 35 considered.
(4) A landowner did not need to do more than erect an appropriate sign in order to prevent the acquisition of a legal right over their land. The erection of clearly visible signs was sufficient as a peaceful and inexpensive means of making clear that property was private and not to be used by others. Those who chose to ignore such signs should not thereby be entitled to obtain legal rights over the relevant land. The sign had to convey clearly to users of the servient land the message that the property was private and not to be used by others: Winterburn v Bennett applied.
In the present case, the judge was correct to identify the question as objective, but fact-specific. The question was what the wording of the sign would have conveyed to a reasonable user of the staircase.
(5) The wording of the sign stated that the staircase and forecourt was “private property”. Taken in isolation, the message conveyed to the reasonable user was that it was private land and was not to be used by others without authorisation.
The identification was combined with the information that there was no public right of way but a notice had to be read in a common sense and not a legalistic way. The reasonable user would take the wording to mean that there was no right to make use of the land on any basis. The land was private land and there was, in addition, no public right of way which entitled the reasonable user to use it.
Applying the principles and guidance in the authorities, the sign was effective to prevent the use from being as of right. Given that the sign was in place from at least July 2000, it followed that the sign prevented the use from being as of right for the greater part, at least, of the 20-year period.
In finding that the sign was ineffective to prevent use as of right, the FTT erred on a point of law. It followed that the decision and the order had to be set aside.
Paul Wilmshurst (instructed by Direct Access) appeared for the appellants; The first respondent appeared in person for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Nicholson and another v Hale and another
