[2024] UKUT 00153 (LC)

Where an easement is claimed on the basis of prescription the relevant use which is relied upon must be user as of right. What this means is that the user must not have been by force, or in secret, or by permission. The Latin expressions which have in the past been used to express these negative requirements are nec vi (neither by force), nec clam (nor secretly), nec precario (nor by permission).

This concept was explained by Lord Hoffmann, in his speech in R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335, in the course of his masterful explanation of the origins and development of the law of prescription. Lord Hoffmann said this, at pages 350F-351C:

It should be noted that Sunningwell, in common with the bulk of the authorities to which I was referred in relation to the Appeal, was a case concerned with commons registration. It is however clear that the same general principles apply, when considering the question of whether a particular user has been as of right, whether one is dealing with a commons registration case or a claim to an easement on the basis of prescription; see David Richards LJ, as he then was, in Winterburn v Bennett [2016] EWCA Civ 482 [2017] 1 WLR 646, at [31].

Although the first of three negative conditions (not by force, nor secretly, nor by permission) refers to force, it is clear that force, in this context, extends further than physical force. The person claiming the easement on the basis of prescription must show that the user which is relied upon was not contentious or allowed only under protest. This was explained by David Richards LJ in Winterburn v Bennett, which I have mentioned above. After reviewing the authorities, David Richards LJ said this, at [19]-[21]:

At [22]-[23] David Richards LJ went on to make the point that the continuous presence of legible signs could be sufficient to render user contentious:

It is therefore the case that the continuous presence of legible signs may be sufficient to prevent use being as of right, for the purposes of a claim based on prescription. The reference is to legible signs in the plural, but it seems to me that the question of whether a single sign is sufficient, or whether multiple signs are required is a fact sensitive question, which depends upon the size and topography of the land over which the relevant right is claimed.

This leave the question of what such a sign or signs need to say. As I have explained in my analysis of the Cross Appeal, a set of general principles in this respect has been helpfully set out in the judgment of Judge Waksman QC, as he then was, in the Warneford Meadow case. The full statement of these principles, in Judge Waksman’s judgment at [22], was in the following terms:

In terms of examples of notices which have and have not been held to be sufficient, it is convenient to start with the Warneford Meadow case. The Warneford Meadow case was a commons registration case and involved an application for judicial review of a decision by Oxfordshire County Council to register land known as Warneford Meadow as a town or village green. The evidence was that notices had been erected on the land, adjacent to certain paths which crossed the land. The notices read “No Public Right of Way”. The County Council had appointed an inspector (Vivian Chapman QC) to conduct a public inquiry into the question of whether the land should be registered as a town or village green. The advice of the inspector was that the land should be so registered. The application for judicial review failed. For present purposes the relevant point is that Judge Waksman agreed with the inspector that the notices which had been erected on the land had clearly been directed to the paths which crossed the land. The notices were not effective to render contentious the recreational use of the land as a whole.

Judge Waksman explained his reasoning on this point at [49]:

Judge Waksman also referred, in his judgment, to two other cases which provide useful guidance on what constitutes adequate wording on a sign, and from which the judge derived the statement of principles which I have quoted above. Judge Waksman mentioned the first of these cases at [19]:

At [20] the judge quoted at some length from the judgment of Sullivan J, as he then was, in the Redcar case. The Redcar case subsequently went on appeal, but the judgment of Sullivan J at first instance is the relevant decision for present purposes:

The judge referred to the second of these cases, where the relevant notices were adequate to prevent the relevant use being as of right, at [21]:

The judge referred to the decision of Court of Appeal in Oxfordshire County Council v Oxford City Council. The case went on appeal to the Court of Appeal and then to the House of Lords. For present purposes however I believe that the appropriate reference is to the judgment of Lightman J at first instance; see Oxfordshire County Council v Oxford City Council [2004] EWHC 12 (Ch) [2004] Ch 253. It was in this judgment that Lightman J decided that the above wording was sufficient to mean that the recreational enjoyment of the relevant land in that case could, following the erection of the relevant notices, no longer be as of right; see the judgment of Lightman J at [29].

Returning to Winterburn v Bennett, the issue in that case was whether the claimants, who owned and operated a fish and chip shop, had acquired a right by prescription, for the benefit of their premises, for themselves and their customers and other visitors to park on adjacent land owned by the defendants. The relevant land had been used as a car park by the defendants’ predecessors in title, the Conservative Club Association. The club had erected two signs, one at the entrance to the car park and one in the window of the club premises. Each sign stated: “Private car park. For the use of club patrons only. By order of the committee”. The essential question before the Court of Appeal in this case was not the wording of the signs, but whether the erection of two signs was sufficient, or whether the club needed to have done more than erect signs, in order to render contentious the use of the car park by the claimants and their visitors.

In his judgment David Richards LJ rejected the argument of leading counsel for the claimants that the club, in response to the signs being ignored by those visiting the fish and chip shop, should have done more. As David Richards LJ explained, at [40]:

I should also quote what David Richards said in [41], by way of conclusion to his judgment:

As can be seen, Winterburn v Bennett provides clear authority for the proposition that a landowner does not need to do more than erect an appropriate sign or signs, in order to prevent the acquisition of a legal right over their land. The erection of “clearly visible signs” is sufficient. For the policy reasons explained in [41], “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”. Those who choose to ignore such signs should not thereby be entitled to obtain legal rights over the relevant land. While this is all extremely useful guidance, it can be seen that the wording of the notices in Winterburn v Bennett does not appear to have been directly in issue. If, as the Court of Appeal decided, the club had not needed to do more than erect the signs, the wording of the signs was sufficient to make clear that the car park was “private and not to be used by others”.

In his judgment David Richard LJ made reference to the decision of the Court of Appeal in Taylor vBetterment Properties (Weymouth) Ltd [2012] EWCA Civ 250 [2012] 2 P&CR 3, and also to the decision of Morgan J at first instance in that case, for which the neutral citation is [2010] EWHC 3045 (Ch). The decision of Morgan J at first instance was amongst those cited to me on the hearing of the Appeal and the Cross Appeal. The judgment of Morgan J contains an extremely useful analysis of whether the relevant uses made of the land in that case had been by force, in the sense of having been rendered contentious by the landowners, and thus not as of right. This analysis included consideration of the effect of notices erected on the land which had suffered repeated acts of vandalism. The particular wording of these signs, which took various forms, was not however directly in issue. Morgan J did however make the following findings in his judgment, in the first part of [94] (the underlining is my own):

The ultimate conclusion reached by Morgan J, on all of the evidence, was that the landowners had done sufficient to render the use of the relevant land contentious for periods of time which meant that the required period of 20 years use as of right could not be shown. The evidence of what the landowners had done was not confined to the erection of signs, with the consequence that Morgan J did not have to consider what the situation would have been if the use had been the subject of the signs erected by the landowners, but without any of the other relevant features, such as breaking down fences and ignoring warnings off. The process of the landowners erecting and re-erecting signs did however form part of the basis for the ultimate conclusion of Morgan J that use of the relevant land as of right could not be shown for the required period of 20 years. As I have said, the particular wording of the signs was not in issue. What however is clear, from the judgment at [94], is that Morgan J regarded the wording of the signs to have been sufficient to make it clear to members of the public that they were not to leave the footpaths.

The Court of Appeal upheld the decision of Morgan J that the use of the relevant land had not been as of right for a sufficient period of time. So far as the signs were concerned, the principal issue before the Court of Appeal was whether Morgan J had been entitled to find, on the evidence, that the signs erected by the landowners would have been seen by the reasonable user of the land. In that context Patten LJ went on to say this, at [52]:

So far as the wording of the signs was concerned, Patten LJ was clear, at [55], that the wording of the signs was sufficient:

The decisions in Winterburn and Betterment (in the latter case both in the Court of Appeal and at first instance) are extremely useful in their statement of the principles which govern the question of whether a particular use of land has been rendered contentious by the actions of the landowner. They are not necessarily of direct assistance, save by comparison of wording, in relation to the question of what form of wording is sufficient. In terms of guidance on the wording of signs, what these cases do is to identify, in general terms, what message the sign must convey to users of the relevant land. What has to be made clear is that the property is private and not to be used by others (David Richards LJ in Winterburn, at [41]). In Betterment what mattered was that the signs made it clear, in contrast to the position in the Warneford Meadow case, that 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 a trespass; see Morgan J in Betterment at first instance, at [94]). Turning to the Court of Appeal in Betterment, the signs indicated to the reasonable observer that the landowner wished people to keep to the footpaths and not trespass on the registered land.

I do not think that it is necessary to make specific reference to any of the remaining authorities to which I was referred. In relation to the question of whether the Wording was sufficient to render the Use contentious, and not as of right, it seems to me that my general approach should be as follows:

With this analysis of the law in place, I turn specifically to Ground 1.