[2024] UKUT 217 (LC)

To recap the Judge’s findings in relation to signs, these were that Mr Sidhu had erected two signs reading “No Public Right of Way” one outside his own home at No. 60 and the other on the Park fence beside the gap used by those passing up and down the private road. The signs were first put up in January 2000 but they disappeared and had to be replaced several times before eventually, after about five years, Mr Sidhu had stopped replacing them.

Mr Sidhu was the only witness called in support of Mrs Kaur who mentioned the signs. He was not asked how often they had been taken down and had to be replaced, or whether there were gaps during the five years between one sign being removed and a replacement being erected. The only evidence on that topic was in his witness statement in which he said no more than that the signs which he erected had disappeared and, after replacing them several times, he had had enough.

Mr Sagier, Ms Whiston and Mr Mahboob were all asked about signs and said that they had never seen any.

The final issue gives rise to a number of questions. The first is whether a sign which refers to there being no public right of way is sufficient to prevent the acquisition of a private right by a neighbouring owner. The second is whether any impact which the signs might have been capable of having on the acquisition of private rights in favour of No. 39 under the 1832 Act depended on them having been on display for at least a year. The third is whether signs put up by Mr Sidhu could prevent the acquisition of rights over No. 60, which belonged to Mrs Kaur and her late husband.

The law on the effect of signs on a claim to have acquired an easement by prescription, has very recently been reviewed by the Tribunal (Mr Justice Edwin Johnson, Chamber President) in Nicholson v Hale [2024] UKUT 153 (LC), a case concerning a sign which included the statement “Private Property – No Public Right of Away”. The FTT had held that the sign did not prevent the acquisition of a private right of way by the owners of adjoining property. The Tribunal’s decision, reversing the FTT, was not available when I heard this appeal but I gave both parties the opportunity to make further submissions to address it.

In Taylor v Betterment Properties (Weymouth) Ltd & Anor [2012] EWCA Civ 250 the effect of signs was considered by the Court of Appeal in the context of a claim that a large area of grazing land should be registered as a village green. There was evidence that signs had been erected by the owners of the land (Betterment), but that these had been repeatedly removed, and so had not been seen by all of the users of the land. Patten LJ stated the general principle, at paragraph [48]:

The question sometimes arises, as it does in this appeal, whether a particular sign is “suitably-worded” to convey to would-be peaceable users that the use of their land is objected to by the owner. In Taylor v Betterment Patten LJ referred with approval to some of the general principles on the interpretation of signs which had been derived from earlier authorities by HH Judge Wacksman QC (sitting as a Judge of the High Court) in R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin), as follows:

The Judge did not refer in his decision to the case put to Mr Sidhu by Mr Sagier in cross examination, which was that the signs had not been intended to notify his neighbours along the private road that they were not welcome to walk over the claimed way. Mr Sagier had argued that the signs targeted only public use, and not use by the small group of people who lived on the road. Mr Sidhu had not understood the distinction put to him between public and private rights of way but said that the signs were intended to deter “strangers”, which he explained included anyone who lived at the Pool Road end of the private road.

Mr Buckpitt (and Mr Wilmshurst in written submissions on Nicholson v Hale) submitted that the signs erected by Mr Sidhu were plainly addressed to members of the “public” not householders and neighbours living on the private road, some only a door or two away. The signs were intended to tell the world at large that the private road was private and the Judge had failed to consider what they would have been understood to mean by those living on the Pool Road side of the fence.

In support of his submission Mr Buckpitt referred to Giles v Donald (CA 10.12.1997 Lexis Citation 5023), an unreported decision of the Court of Appeal refusing an application for permission to appeal in a case on somewhat similar facts to these, but although apparently helpful to his argument, the brief observations of Butler-Sloss LJ cannot be regarded as authoritative.

The one case in which consideration has been given to the effect of a sign including the words “no public right of way” is this Tribunal’s very recent decision in Nicholson v Hale. In that case a terrace of houses was set above the level of the adjoining street and served by a pedestrian walkway running along the front of the terrace. The walkway was reached by a staircase at the top of which was a small sign which read: “This staircase and forecourt is private property. No public right of way.” The FTT considered that the sign did not prevent the acquisition of a private right of way over the staircase for the benefit of one of the houses in the terrace but this Tribunal allowed an appeal against that conclusion. In doing so it applied the principles described by Judge Waksman QC and approved by the Court of Appeal in Taylor v Betterment. Taken in isolation the statement that the staircase was private property would convey to any reader that access was not available to persons other than the owner of the land and those authorised by the owner. That message was reinforced by the statement that there was no public right of way. The reader of the notice would not understand that a distinction was intended between public and private rights of way.

Ms Newman acknowledged that the language of the sign in Nicholson v Hale was different. She nevertheless suggested that the statement “no public right of way” would be understood to mean “no right of way” by a reasonable reader without any particular legal knowledge. It would convey to anyone crossing the low wooden barrier that they were doing so without the consent of the owner of the land they were stepping onto. The distinction between public and private rights of way was not one which would occur to users of the way, whether they lived on the private road itself or on Pool Road, or further afield.

The Judge did not deal with this issue in his decision. The general question is: what would the sign convey to a reasonable user of the claimed right? As the right claimed is a private right for the benefit of the owners of No. 39, the reasonable user must be assumed to have similar characteristics to those by whom the right is claimed (i.e. that they are an owner of a house on the private road). In Betterment at paragraph [50], Patten LJ referred to what the reasonable person “standing in the position of the actual user should have realised”. The assumed user of the route, and reader of the notice, must therefore be assumed to have the same background knowledge as an owner of one of the houses on the private road would have had. I do not accept Ms Newman’s submission that the notice should be interpreted by asking how it would be understood by anyone living on the estate.

The question is to be addressed by reference to the context in which the notice was displayed. That context was that the signs were erected on a new private road initially in January 2000, within a year of the completion of the estate and a few months after the developer had put up a low wooden barrier to discourage the use of the route by vehicles. The context was modified when the wooden barrier was replaced over most of its distance by the original metal fence, leaving pedestrian access through the gap between the metal fence and the Park railings. The route was frequently used as a convenient shortcut for pedestrians making their way to and from the local facilities and by the owners of houses on the private road as they crossed each other’s frontages.

In that context, to whom would a reasonable user of the claimed route who lived on the private road understand that the signs were addressed? Such a user would have appreciated that the sign outside No. 60 was aimed at pedestrians, since the way was already blocked to vehicles at that point (the sign outside No. 63 was more ambiguous and might have been taken simply to be addressed to motorists).

Users would also have read the sign assuming that neither Barratt, when they installed the wooden barrier, nor those owners who later put up the metal fence leaving a gap at the end, can have intended to prevent all pedestrian access. It was suggested by Mrs Kaur in her evidence to the FTT that the fence did not extend all the way to the Park railings because there were flowers growing on the grass verge. The Judge did not say what he made of that suggestion, but it is the impression which the sign created in the mind of the user which is important. The wooden barrier was no obstacle to pedestrians and by leaving a stretch of it in place when the fence was erected the owners would have appeared to be indicating that they were content for at least some pedestrians to continue to cross over it. They cannot be taken to have left the gap solely for their own convenience to enable them to reach Pool Road over their neighbours’ frontages, while denying those same neighbours the reciprocal opportunity to get to Victoria Park Road.

In those circumstances there is force in Mr Buckpitt’s submission that the sign asserting “No Public Right of Way” would not have been understood by the owners of houses on the private road as a message from their neighbours that they were not permitted to cross over the low wooden barrier. After all, the owners at the Pool Road end of the road were subjected to the same inconvenience as their neighbours at the other end by the comings and goings of the public, who passed over the driveways of Nos. 37 to 43 just as frequently as those of Nos. 60 to 63. The sign appeared specifically to be aimed at the public, and whether or not they appreciated the lawyer’s distinction between a public right of way and a private right, I do not consider that a householder living on the private road and over whose own frontage the public also walked would have clearly understood that they were included in that classification. It would have been obvious to someone living at No. 43, for example, that their next door neighbours at No. 60 on whose land the sign was displayed were not inhibited from walking over their neighbours’ property either to reach Victoria Park Road or Pool Road. In my judgment a reasonable owner of No. 39 would, at the very least, have been in considerable doubt over whether the sign was intended to convey a message to them that they were not also welcome to do so. I think it more likely that they would have understood that they and their neighbours were fellow residents of the private road, and not the public whose presence was objected to.

In this context it is clear from the authorities that an ambiguous warning will not do. In Dalton v. Angus, Bowen J suggested that “unmistakable protests” should be recognised as having the same effect as physical obstructions and that statement has since been quoted with approval at all levels. In Newnham v Willison Kerr LJ referred to “knowledge” on the part of the person seeking to establish prescription that his user is being objected to. And in Winterburn v Bennett Richards LJ said that where an owner has made his position “entirely clear” through the erection of clearly visible signs, the unauthorised use of the land could not be said to be as of right. Accordingly, if it was unclear to reasonable residents of the private road whether the signs were addressed to them, as well as to other users, (as I think at best it would have been) that would not have been enough to render their use contentious.

I do not regard the Tribunal’s decision in Nicholson v Hale as an obstacle to this conclusion. Both the wording of the sign in that case and the location and context in which it was displayed were very different.

My conclusion that the signs erected by Mr Sidhu did not make the use of the way by the owners of houses on the private road contentious is sufficient to dispose of the appeal. I can deal with two other points raised in argument briefly.

Mr Buckpitt pointed out that the Judge made no findings about how long the signs were on display before they were taken down. Mr Sidhu’s written evidence was very concise and said only that the signs had been taken down and had had to be replaced several times. The Judge asked when the signs had first been put up and when Mr Sidhu had stopped replacing them, but not how long they had been displayed on each occasion before being removed. Where a claim to a prescriptive right is made under the 1832 Act, an interruption of use as of right which lasts for less than a year is not deemed to be an interruption at all. For the signs to have had any effect it was therefore necessary that they should have been displayed more or less continuously for at least a year, but the evidence did not establish whether that had happened. The evidence showed only that signs were present for part of the period from 2000 to 2005 during which they were removed and reinstated on a number of occasions. How often they had to be replaced and how long were the intervals between their removal and reinstatement were not investigated. Mrs Kaur bore the evidential burden of showing that the use of the way had been contentious and in the absence of evidence on the point Mr Sagier’s application should have succeeded.

There is less in the final point, which is whether signs put up by Mr Sidhu, the owner of No. 63 could prevent the acquisition of rights over No. 60, which belonged to Mrs Kaur and her late husband. The evidence appears to have been that the signs were erected after consultation between neighbours and they must be regarded as having been displayed with the concurrence of each of them.