[2024] UKUT 00153 (LC)

In her analysis of the law relating to the acquisition of easements by prescription the Judge made reference, at Paragraph 27, to the judgment of David Richards LJ in Winterburn. After quoting from the judgment at [37] and [41], the Judge identified, at Paragraph 28, the question which she had to answer, in terms of the adequacy of the Wording, in the following terms:

It seems to me that the Judge was correct to identify the question as an objective, but fact specific one. What would the Sign, specifically, the Wording have conveyed to a reasonable person or, to use the specific language of the authorities, to a reasonable user of the Staircase?

The Judge answered this question at Paragraph 59. I have already set out Paragraph 59, but I set it out again for ease of reference:

I have already dealt with the Judge’s finding as to the legibility of the Sign, in my analysis of the Cross Appeal. So far as the Judge’s analysis of the Wording is concerned, the decisive factor, in her judgment, was that the Sign was limited in its effect. The Sign stated that no public right of way existed. This did not affect the acquisition of a private right. On the Judge’s analysis, stating that the property was private did not affect the outcome, because rights of way are typically acquired over someone else’s private land.

I am not able to agree with this analysis of the effect of the Wording. I say this essentially for two reasons, both deriving from the Wording itself.

First, the Wording stated that the Staircase and forecourt, that is to say the Blue Land, was “private property”. The Sign is of course still in place, but I use the past tense because I am concerned with the effect of the Sign during the period when the Judge found the Use to have been occurring; that is to say for a period of 20 years or more from no later than 2^nd December 1996.

If the reference to private property is taken in isolation, I find it difficult to see what message it conveyed to the reasonable user other than that the Blue Land was private land and was not to be used by others. I also find it difficult to see why the message that the Blue Land was private property was not sufficient to indicate to the reasonable observer that the landowner wished people to keep off the Blue Land. If land is identified as private property, the message which this identification seems to me to convey is that it is not open to persons other than the owner of the land and those authorised by the owner either to go on to the land or to make use of the land.

It will be recognised that I am, in my previous paragraph, using the same language as was used in Betterment and Winterburn. It seems to me however that the same conclusion follows if one considers specific examples, from the case law, of signs which were and were not effective to render the relevant use contentious. Returning to the Warneford Meadow case, Judge Waksman cited the decision of Sullivan J in Redcar. In Redcar however the notice stated that it was dangerous to trespass on the golf course. As Sullivan J pointed out, a notice could have been erected informing local people that Cleveland Golf Club was private property and that they should keep out. Alternatively, the notice could have stated “Do not trespass”. The problem was that the notice identified a risk of trespassing, rather containing an instruction not to trespass or an instruction to keep out. In the present case, the wording did not say “keep out” or “no trespassing”, but it did identify the Blue Land as private property. In Betterment at first instance, Morgan J considered that the notices had conveyed the required message to members of the public by identifying the land, apart from the footpaths, as private. This made it clear to members of the public that they were not entitled to leave the footpaths; see the judgment of Morgan J at [94].

In the Warneford Meadow case Judge Waksman also made reference to Oxfordshire County Council v Oxford City Council. In that case the relevant signs (referred to as notices) were sufficient. This was, in part, because the signs stated that the relevant land was private property. I say in part because the signs also stated that access was prohibited except with the express consent of Oxford City Council. It follows that the case is not on all fours with the present case. Nevertheless, this case does seem to me to provide some further support for the proposition that a reference to private property conveys the message that the land is not to be used by anyone not authorised to do so by the landowner.

As the Judge pointed out at Paragraph 28, and as the case law demonstrates, the nature and content of the relevant notice must be examined in context. The context here is a small area of land which, by the Staircase, provided a direct route from the Pavement to the Walkway, without the necessity to proceed to the eastern end of the Terrace and then along the Walkway from Number 9. This was not a case involving large areas of land, or land crossed by footpaths which the public were allowed to use. The Blue Land provided a short cut from the Pavement to the Walkway. To my mind, a sign stating that the Blue Land was private property should have been sufficient to inform those using the Blue Land as a short cut that they were not entitled to do so.

Thus far in my analysis I have taken the identification of the Blue Land as private property in isolation. The identification did not however appear in isolation. It was combined with the information that there was no public right of way. This brings me to my second reason for differing from the Judge’s analysis. The Judge regarded the statement that there was no public right of way as the critical factor. The Sign was defining the type of right which was being prevented, and did not prevent the acquisition of private rights such as the Right of Way. On this basis, and on the Judge’s analysis, the identification of the Blue Land as private land made no difference. This identification effectively did no more than identify the nature of the land over which private rights could still be acquired.

I cannot agree with the Judge’s analysis of the effect of the statement in the Wording that there was no public right of way. As Judge Waksman pointed out in the Warneford Meadow case, at [22(4)], a notice should be read in a common sense and not a legalistic way. The question is what a reasonable user of the Blue Land would have understood from reading the Sign. It strikes me as wrong to treat the reasonable user as taking the Wording to mean that, while no public right of way existed, the exercise of a private right was not prohibited. I do not think that the reasonable user should be treated as making legal distinctions of this kind.

In his oral submissions Mr Wilmshurst contended that the reference to no public right of way did not undermine the identification of the Blue Land as private property. I accept this submission. It seems to me that the reference to no public right of way did not qualify or undermine the identification of the Blue Land as private property. To my mind it reinforced the message that anyone other than those authorised by the owner of the Blue Land was not entitled to make use of the Blue Land as a route to the Walkway. In my view a reasonable user of the Blue Land would have understood that they had no right to make use of the Blue Land, on any basis.

Mr Hale made the point that the Sign could have stated that there was no public or private right of way. I take the point, but it does not seem to me to deal with the following difficulty which exists both in Mr Hale’s argument, and in the analysis of the Judge. The reasonable user must be taken to have read the whole of the Wording, and not just the reference to no public right of way. If however the reasonable user is taken to understand the reference to no public right of way as having no effect on the acquisition of private rights over the Blue Land, how would the reasonable user have understood the reference to the Blue Land being private property? If one assumes, wrongly in my view, that the reasonable user was distinguishing between public and private rights of way, it seems to me that the Judge’s analysis requires one to treat the identification of the Blue Land as private land as amounting to no more than a reinforcement of the message that there was no public right of way. If however one assumes that the reasonable user must be taken to have applied a level of analysis to the Wording which distinguished between public and private rights of way, I find it hard to see how the reasonable user can be treated as assuming that there was no restriction on the exercise of private rights over the Blue Land. If the Blue Land was identified as private property, as it was, there was no right to use the Blue Land as a short cut to the Walkway on any basis. It seems to me, on the basis of the Judge’s analysis, that the reasonable user must be taken to have been aware of this fact.

If however one takes the Wording in a common sense way, and not in a legalistic way, it seems to me that the reasonable user would have taken the reference to no public right of way as a simple reinforcement of the message that they had no right to use the Blue Land as a short cut to the Walkway. The Blue Land was private land, so no one but the owner and those authorised by the owner had a right to be on it or to make use of it, and there was, in addition, no public right of way which entitled the reasonable user to make use of the Blue Land.

In support of his argument, and with particular reference to his point that the Wording could have said no public or private right of way, Mr Hale referred me to the judgment of Judge Waksman in the Warneford Meadow case, at [41]. At this point in his judgment Judge Waksman made reference to the findings of the inspector to the effect that the signs erected by the paths which crossed the land were intended to prevent the acquisition of public rights of way. As I have already explained, in my analysis of the law, Judge Waksman supported the inspector’s findings as to the effect of the notices. It seems to me however that this part of the judgment in the Warneford Meadow case is clearly distinguishable in the present case. The problem which confronted the objectors to registration in the Warneford Meadow case was that the relevant signs, in stating that there were no public rights of way, were taken to be directed only to the paths. It was found that they had no application to the remainder of the land. In the present case, which involves a very small area of land, there is no scope for confining the effect of the Wording in the way that the wording of the notices was confined in the Warneford Meadow case. In the present case the Sign was stated to apply to the whole of the Blue Land, identified as the Staircase and the Blue Land, and quite clearly would have been understood by the reasonable user to relate to the whole of the Blue Land.

Once one takes into account the point that the Sign was stated to apply to the whole of the Blue Land, and would have been so understood by the reasonable user, I cannot see how the Wording was ineffective to make it clear that access was not available on any basis. As I have said, in my judgment the reference to no public right of way reinforced the message that there was no right of any kind to use the Blue Land, which was private property. In my judgment this is how the Wording would have been understood by the reasonable user.

Drawing together all of the above analysis, and for the reasons which I have set out, I cannot agree with the Judge’s analysis. Applying to the Wording the principles and guidance which are to be found in the authorities to which I have referred in the previous section of this decision, it seems to me that the Sign was sufficient to make it clear to the reasonable user of the Blue Land that use of the Blue Land in order to obtain access between the Pavement and the Walkway was contentious, on any basis. As such, it seems to me that the Sign was effective to prevent the Use from being as of right, at least as from July 2000. I refer to July 2000 because the earliest evidence of the Sign being in its current location is the photograph referred to by the Judge in Paragraph 15, which shows the Sign in its current location in July 2000. The Judge found that the Use had continued for a period of 20 years or more from no later than 2^nd December 1996. Given that the Sign was in place from at least July 2000 it follows that the Sign prevented the Use from being as of right for the greater part, at least, of this 20 year period.

In these circumstances I conclude that Ground 1 succeeds. The Judge was wrong to find that the Use was as of right. The Judge should have found that the Sign prevented the Use being as of right for the greater part of the period of 20 years relied upon by the Respondents, with the consequence that the Respondents were not entitled to claim acquisition of the Right of Way on the basis of prescription. The Use was not as of right for the required period of 20 years, with the consequence that the Respondents were not able to rely upon the doctrine of prescription.

As I have already explained, the right of appeal to the Upper Tribunal in this case is not confined to an appeal on a point of law; see Section 111 of the Land Registration Act 2002 and Section 11 of the 2007 Act. It seems to me however that the Judge, in finding that the Sign was ineffective to prevent the Use being as of right, did make an error on a point of law. This part of the Decision, in Paragraph 59, depended upon the Judge’s determination of the meaning and effect of the Wording. Effectively, the Judge was construing the Wording, in the context of the question of how the Wording would have been understood by the reasonable user. In these circumstances it seems to me that the Appeal is correctly classified as an appeal on a point of law. It also seems to me that the Judge, in her conclusion in this part of the Decision, made an error on a point of law within the meaning of Section 12(1) of the 2007 Act.

This brings me to Section 12(2) of the 2007 Act, which provides as follows where an error on a point of law has been made by the FTT:

It seems to me that the consequence of the success of Ground 1 is that the Decision and the Order must be set aside. If, as I have determined, the Judge should have found that the Use was not as of right, the Respondents had failed to establish that they had a valid right of way over the Blue Land. On this basis the claim to the Right of Way should have failed, and the Chief Land Registrar should have been directed to cancel the Application. It follows that the Decision and the Order cannot stand, and must be set aside.

This leaves the question of whether I should remit the case to the FTT with directions for its reconsideration, or re-make the Decision. The answer to this question seems clear to me. There is no purpose in a remission, as I have decided that the claim to the Right of Way has not been established, because the Use was not as of right for the required period of 20 years. There is no factual question or other matter which requires reconsideration by the FTT. In these circumstances it seems to me that I can and should re-make the Decision, as a decision that the Use was not as of right for the required period of 20 years, with the consequence that the claim to the Right of Way fails. As such, there should be a direction to the Chief Land Registrar to cancel the Application.

On this basis, the Appeal succeeds on Ground 1.

It follows from the conclusions which I have reached in relation to Ground 1 that it is not strictly necessary for me to decide Ground 2. The Appeal has succeeded on Ground 1. Ground 2 was however fully argued and, in these circumstances, I will set out my analysis of Ground 2.