[2024] UKUT 00153 (LC)

As I have explained, Ground 2 relies upon the particular location of the Blue Land as a means of obtaining access between the Pavement, which is part of the public highway, and the Walkway. In his skeleton argument for the hearing of the Appeal and the Cross Appeal Mr Wilmshurst put his submissions on the basis that the Walkway is or had been a public right of way. The Judge did refer to the original railed off area, which previously ran along the length of the Terrace above the extended basements of the Properties, as a carriageway; see Paragraphs 9 and 10. Mr Wilmshurst drew my attention to the fact that a carriageway is a defined expression in the Highways Act 1980. Section 329 of the Highways Act 1980 defines a carriageway as “a way constituting or comprised in a highway, being a way (other than a cycle track) over which the public have a right of way for the passage of vehicles”. Mr Wilmshurst also referred me to the decision of the Supreme Court in Southwark London Borough Council v Transport for London [2018] UKSC 63 [2020] AC 914, in which the meaning of the word “highway” was considered.

I do not think however that the Judge intended to make a finding that the carriageway, as she described it, was a public highway. The Judge did not say this in terms, and I can find no suggestion in the Decision that the Judge was treating the former carriageway as a public highway, or the Walkway as a public highway. Nor can I see that Section 329 or the Southwark case provide support for the argument that the Walkway was or is subject to a public right of way of any kind.

In oral submissions I understood Mr Wilmshurst to accept that he was not able to say that the Walkway had been or is a public right of way. Mr Wilmshurst’s position in oral submissions was that the Walkway was, at least, an area to which the public had effective (Mr Wilmhurst used the Latin expression “de facto”) access. I am not in a position to make findings about what rights, public or private, exist over the Walkway, and I do not do so. It is however obviously the case that, given the absence of physical obstruction, anyone can proceed along the Pavement to the eastern end of the Terrace and, passing in front of the Octagon building, obtain access to the Walkway.

Mr Wilmhurst’s argument in support of Ground 2, which I have already summarised, is that because the Blue Land lay between a public highway, namely the Pavement, and an area to which the public could obtain access, namely the Walkway, all that was required of a reasonable landowner, in order to render the Use not as of right, was to communicate the information that there was no public right of way. This on its own was sufficient, because it conveyed the critical message that there was no extension of the public right of way which existed over the Pavement into the Blue Land. A reasonable landowner would conclude that they had done enough by communicating the message that there was no public right of way. Thus, in the particular circumstances of this case, the Judge was wrong in her analysis in Paragraph 59 because, even if that analysis might have been justified in another case, it was not justified in the case of land where one was going from a public right of way to an area of effective public access.

In support of Ground 2 Mr Wilmshurst drew my attention to certain authorities which, so he submitted, supported his argument in relation to Ground 2.

In this context Mr Wilmshurst started with Lord Hoffmann’s speech in Sunningwell. I have already quoted what Lord Hoffmann said at 350F-351C. Within this extract from Lord Hoffmann’s speech Mr Wilmshurst referred me to the unifying element which Lord Hoffmann identified as lying between the three negative conditions which must be satisfied, in a prescription case, in order for the relevant use to be as of right. For ease of reference I repeat this identification of the unifying element, at 350H-351A:

Next, Mr Wilmshurst referred me to the judgment of Lord Carnwath in R (Barkas) v North Yorkshire County Council [2014] UKSC 31 [2015] AC 195. Lord Carnwath commenced his judgment, at [51] and [52], by expressing his agreement with Lord Neuberger that the appeal in that case should be dismissed, but indicated that he considered it desirable to look at the matter in a wider context:

The second of the general points made by Lord Carnwath was consideration of the “as of right” test, in its context. Lord Carnwath sounded the following note of caution in relation to this test, at [58]-[60]:

Lord Carnwath went on to say this, at [61]-[62]:

Lord Carnwath returned to this theme in Regina (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 [2015] AC 1547, which concerned a challenge, by way of judicial review, to a decision by East Sussex County Council to register an area of foreshore at Newhaven, known as West Beach, as a town or village green. In his judgment, at [131], Lord Carnwath identified the following three possibilities, in terms of the basis for the right of the public to use West Beach:

At [134] Lord Carnwath quoted from the judgment of Lewison LJ in the Court of Appeal in the case:

Lord Carnwath then returned specifically to what he had said in Barkas, and to its implications in the present case, at [135]-[136]:

I will come back to these authorities but, returning specifically to Ground 2, it seems to me that there is a confusion in Ground 2. The confusion seems to me to exist between two different questions which may arise where a right is said to have been acquired over land by prescription. In such a case, as in the present case, the question may arise as to whether the relevant use has not been as of right on the basis that the use was by force, or by secrecy, or by permission.

Where, as in the present case, it is said that the use was by force, and thus not as of right, the question which then arises is whether the landowner has done sufficient to render the relevant use contentious. The case law which I have considered, in my analysis of the law relevant to the Appeal, establishes three particular points. The first point is that the reference to force is not confined to physical obstruction of the relevant use, for the reasons explained in the case law; see by way of example David Richards LJ in Winterburn, at [40] and [41]. The second point is that what the landowner is required to do in any particular case is a fact sensitive question, which depends heavily on the particular circumstances of each case. The third point is that the case law also establishes that use can be rendered contentious, so as not to amount to use as of right, by the erection of an appropriate sign or signs; see again David Richards LJ in Winterburn at [40] and [41]. The question of whether a particular sign is effective to render use contentious is, again, a fact sensitive question. In terms of the question of how the relevant sign would have been understood by users of the land, this question falls to be answered from the perspective of the reasonable user. This question is not answered from the perspective of a reasonable landowner; see the general principles stated by Judge Waksman in the Warneford Meadow case, at [22]. In particular, Judge Waksman said this, at [22(6)]:

Mr Wilmshurst framed his arguments in support of Ground 2 on the basis that the owner of the Blue Land would have considered that he had done sufficient by erecting a sign stating there was no public right of way over the Blue Land even if that would have been insufficient in the case of land which did not lie between a public right of way and land to which the public had effective access. As I have said, this argument seems to me to confuse two questions.

The first question is whether the owner of the Blue Land could have prevented the Use being as of right by erecting an appropriate sign. If the owner of the Blue Land had erected an appropriate sign, would the owner have done all that could reasonably be expected of them to render the Use contentious? The answer to that question is that the owner of the Blue Land could have rendered the Use contentious by the erection of an appropriate sign. The case law establishes that the erection of an appropriate sign, without more, was capable of being sufficient to prevent the Use being as of right. If an appropriate sign was erected, the owner of the Blue Land was not expected to do more.

The second question is whether the Sign itself was an appropriate sign; that is to say a sign sufficient to perform the task of rendering the Use contentious. At this point the emphasis switches to the reasonable user. Was the Sign sufficiently visible and legible to the reasonable user and, assuming that it was, was the message conveyed to the reasonable user by the Wording sufficient to convey to the reasonable user that they had no right to use the Blue Land in order to obtain access between the Pavement and the Walkway? The second question is not answered by considering whether a reasonable landowner would have considered that they had done enough in the particular circumstances of the case. The second question is answered by considering what the reasonable user would have understood the Sign to mean. This requires consideration of the Wording. This is because the visibility and legibility of the Sign are not in issue. The Judge found that the Sign was visible and legible and the attempt of the Respondents, by the Cross Appeal, to challenge that finding has failed.

I have answered this second question, as it arises in the present case, in my analysis of Ground 1. I have decided, in respectful disagreement with the Judge, that the Sign was sufficient to render the Use contentious, and not as of right.

In answering the second question, I can see that the particular location of the Blue Land, between a public right of way and the Walkway, is a relevant factor. Indeed it is a factor which I have taken into account in my analysis of Ground 1.

What I cannot see is any scope for a separate argument that, by reason of the particular location of Ground 2, the Sign was effective to prevent the Use being as of right because a reasonable landowner would have been entitled to consider that it was sufficient for the Sign to make it clear that there was no public right of way. It seems to me that this argument properly belongs in Ground 1, and is properly framed as an argument that, if the Sign had simply said no public right of way, a reasonable user of the Blue Land would, by reason of the location of the Blue Land, have understood that they were not entitled to use the Blue Land for access purposes, on any basis.

It is not necessary for me directly to decide this particular argument, because the Wording was not confined to a statement that there was no public right of way. The Wording also made it clear that the Blue Land was private land. My analysis of how the Wording would have been understood by a reasonable user of the Blue Land is set out above, in my analysis of Ground 1. That analysis is based upon the entirety of the Wording. The analysis is not confined to the statement in the Wording that there was no public right of way. As I have said, I regard the particular location of the Blue Land as a relevant factor in considering how the Sign would have been understood by a reasonable user, which I have taken into account in my analysis of Ground 1. As however I have also said, I cannot see any scope for a separate argument based on the location of the Blue Land, advanced on the basis set out in Ground 2.

I indicated that I would come back to the authorities cited by Mr Wilmshurst in support of Ground 2. I have set out above relevant extracts from the judgments of Lord Carnwath in Barkas and Newhaven. I do not see how those authorities assist Ground 2, or indeed are relevant to Ground 2. I say this for two reasons. First, it seems to me that Lord Carnwath was saying no more than that the tripartite test for determining whether use had been as of right, namely by asking whether the relevant use had been by force, or in secret or by permission, was not always the whole story, nor necessarily the same story for all forms of prescriptive right. The circumstances of the relevant case have to be considered as a whole, including consideration of the quality of the user; see Lord Carnwath in Barkas at [58]-[61]. Second, it is apparent from the same part of Lord Carnwath’s judgment in Barkas that Lord Carnwath’s reservations about the tripartite test were directed, or at least principally directed to the process by which a town or village green may come into existence; see Lord Carnwath’s quotation, in Barkas at [59], from the speech of Lord Scott in R (Beresford) v Sunderland City Council [2003] UKHL 60 [2004] 1 AC 889.

I have difficulty in seeing how any of this supports the Appellants’ argument in support of Ground 2. The argument is that the particular location of the Blue Land, between a public highway and an area to which the public could obtain access, meant that it was sufficient for the Sign to state that there was no public right of way. This is said to have been sufficient on the basis that a reasonable owner of the Blue Land would have been entitled to consider that they did not need to do any more, given the location of the Blue Land. For the reasons which I have explained, the particular location and topography of the Blue Land do seem to me to have some relevance, in relation to Ground 1, to the question of whether the Wording was sufficient to prevent the Use having been as of right. I cannot see however that there is anything in what Lord Carnwath said in Barkas or Newhaven which supports the Appellants’ argument in support of Ground 2.

I therefore conclude that Ground 2 is misconceived. In relation to Ground 1, the argument underlying Ground 2, based on the location of the Blue Land, seems to me to have merit and to be a relevant factor in considering how the Sign would have been understood by a reasonable user. I cannot however see that Ground 2 has merit as a free-standing ground of appeal, at least on the basis on which it was advanced. I therefore conclude that Ground 2 fails, as a free-standing ground of appeal.