A clearly worded sign is enough to stop an easement being created by prescription, because the sign specifies that the use (which might otherwise become an easement) does not have the consent of the landowner. This much is established law. The challenge for practitioners is advising on the wording of such a sign: is it clear enough?
An easement claimed by prescription must have been used as of right. What this means is that the use must not have been by force, nor in secret, nor with permission. Put another way, the person claiming the easement on the basis of prescription must show that the user which is relied upon was neither contentious nor allowed only under protest.
As a matter of policy, a clearly visible sign is sufficient to amount to a protest. This peaceful and inexpensive means of making clear that property is private can prevent those who ignore such signs from obtaining legal rights. There is no need to confront unlawful users personally or bring legal proceedings.
The point has been considered recently by the Upper Tribunal in Nicholson and another v Hale and another [2024] UKUT 00153 (LC). A row of properties called Derby Terrace was accessible both by a raised walkway, leading to the principal entrances, and by a staircase from the highway up to the walkway. The staircase was over land forming part of 4 Derby Terrace. The staircase was removed and the owners of 6 Derby Terrace claimed a right by prescription, granted by the First-tier Tribunal, but appealed by the owners of 4 Derby Terrace to the Upper Tribunal.
The tribunal accepted there had been a sign, 20cm by 6cm, stating ‘This staircase and forecourt is private property. No public right of way’. However, the right claimed was a private right of way – what would the wording of the sign have conveyed to a reasonable user of the staircase?
R (Oxfordshire and Buckinghamshire Mental Health NHS Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin) involved an application for judicial review of a decision to register land known as Warneford Meadow as a town or village green. Notices on the land, adjacent to paths which crossed the land, read ‘No Public Right of Way’. These notices were held to have been directed to the paths which crossed the land. They were not placed next to a path which was a public footpath and were silent on any other use of the paths, such as being crossed while walking a dog. This meant that the notices were not sufficient to defeat the commons registration.
Notices stating ‘Cleveland Golf Club. Warning. It is dangerous to trespass on the golf course’ were considered in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWHC 1813 (Admin), another judicial review of a town and village green case. Sullivan J was clear that the notices should be construed in a commonsense rather than a legalistic way. The notices did not say ‘Do Not Trespass’; they identified a risk of trespassing, rather than containing an instruction not to trespass or an instruction to keep out.
The landowner in Oxfordshire County Council v Oxford City Council [2006] Ch43 was more successful with a sign reading ‘Oxford City Council Trap Grounds and Reed Beds Private Property Access Prohibited Except with the express consent of Oxford City Council’. Erecting that sign was held to be sufficient to prevent recreational enjoyment of the land as of right. A good result too for the landowner in Winterburn v Bennett [2016] EWCA Civ 482 where signs stating ‘Private car park. For the use of club patrons only. By order of the committee’ prevented visitors to a nearby fish and chip shop from parking on land owned by the Conservative club.
Returning to Derby Terrace, the issue is both objective and fact-specific. What would the wording on the sign have conveyed to a reasonable user of the staircase? The Upper Tribunal found that a reference on a sign to private property conveys the message that the land is not to be used by anyone not authorised to do so by the landowner. Furthermore, the reasonable user is assumed to have read the whole sign. The 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. On this commonsense analysis, the exclusion of the public right of way reinforces the statement of private property. The appeal was successful and 6 Derby Terrace had no right of way.
No doubt practitioners will have some sympathy with 6 Derby Terrace, who argued for a private right of way rather than a public one. How much greater will that sympathy be on learning that 6 Derby Terrace is owned by a firm of solicitors – lauded in the judgment for the clarity and economy of its oral submissions.
This illustrates the challenge facing solicitors asked to advise on or draft suitable signs: we must draw on our legal knowledge and training, only in order to write in plain English.
Suzanne Gill is commercial property partner at Wedlake Bell,London
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