Warning signs prevented use from qualifying as use “as of right”
Unauthorised use of land is not use “as of right” if a landowner has erected signs in a visible position clearly indicating his objections to such use. Thus spake the court in Bennett v Winterburn [2016] EWCA Civ 482; [2016] PLSCS 154. Use “as of right” must not be contentious, secretive or permissive. And the Court of Appeal failed to see why users who ignored signs stating that land was “private” (making their use contentious) should benefit by obtaining an easement by prescription as a result.
The Commons Act 2006 requires use “as of right” for at least twenty years before land can be registered as a town or village green. So, one of the questions that arose in Cotham School, R (On the Application Of) v Bristol City Council [2018] EWHC 1022 was: does the philosophy in Winterburn apply to the acquisition of rights in town and village green cases? And, if so, how many signs are needed if there are multiple points of entry to a large area of land?
In Winterburn, there were two signs in a private car park that belonged to a club. But this case concerned twenty two acres of grassland in Bristol, large parts of which were laid out as playing fields. Were three clearly visible signs, warning against trespassing, sufficient to make unauthorised use contentious? There were at least twelve access points and the land had been used by local inhabitants for recreational purposes for more than 20 years.
Unauthorised use of land is not use “as of right” if a landowner has erected signs in a visible position clearly indicating his objections to such use. Thus spake the court in Bennett v Winterburn [2016] EWCA Civ 482; [2016] PLSCS 154. Use “as of right” must not be contentious, secretive or permissive. And the Court of Appeal failed to see why users who ignored signs stating that land was “private” (making their use contentious) should benefit by obtaining an easement by prescription as a result.
The Commons Act 2006 requires use “as of right” for at least twenty years before land can be registered as a town or village green. So, one of the questions that arose in Cotham School, R (On the Application Of) v Bristol City Council [2018] EWHC 1022 was: does the philosophy in Winterburn apply to the acquisition of rights in town and village green cases? And, if so, how many signs are needed if there are multiple points of entry to a large area of land?
In Winterburn, there were two signs in a private car park that belonged to a club. But this case concerned twenty two acres of grassland in Bristol, large parts of which were laid out as playing fields. Were three clearly visible signs, warning against trespassing, sufficient to make unauthorised use contentious? There were at least twelve access points and the land had been used by local inhabitants for recreational purposes for more than 20 years.
Having reviewed the authorities, including Winterburn, and most recently R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and R (on the application of NHS Property Services Ltd) v Surrey County Council [2018] EWCA Civ 721, the judge had no doubt that the same principles apply to the words “as of right” whether the claim relates to the acquisition of private rights or the registration of a green.
The inspector who conducted a non-statutory public inquiry for the registration authority found that local people had gone all over the land. He concluded that a significant number of people would have passed the signs erected by the landowner and, in his view, they rendered the use of the land contentious (even though one of the signs had subsequently disappeared). The registration authority accepted the inspector’s conclusions. Nonetheless, it decided to register the land as a green, even though there did not appear to be any basis on which to do so, and had compounded its error by failing to provide adequate reasons for its decision. Consequently, the authority had acted unlawfully.
The judge went on to reject a challenge to registration on the ground that the user was permissive because, when the pitches were being used for organised sports locals had no access to them, ruling that the uses had co-existed with each other. And, on the question of statutory incompatibility, the judge applied the decision in the Lancashire case, ruling that there was no incompatibility between the legislative provisions relating to the use and disposal of the playing fields and the town and village green regime.
The judge has yet to make a final ruling. But, because the registration authority had acted unlawfully when it registered the land as a green, the judge indicated that it would be “very difficult” to persuade him not to quash the authority’s decision to do so.
Allyson Colby, property law consultant
