Can a sign prevent a user’s right of way?

Louise Clark offers an update on the signage required to prevent prescriptive rights accruing. In Nicholson and another v Hale and another [2024] UKUT 153 (LC); [2024] PLSCS 112, the Upper Tribunal (Lands Chamber) has considered the nature and terms of the signage required to prevent the acquisition of a right of way by prescription. The background The case concerned 4 and 6 Derby Terrace, part of a terrace of Grade II listed properties in Nottingham. Each property was three storeys high with an elevated ground floor, so the basement was on the same level as the public highway. Access to the properties at ground floor level was by means of a raised walkway. The appellants acquired number 4 in May 2020 and substantially refurbished it. This included creating an enclosed garden at basement level where there was previously a paved forecourt and removing a railed metal staircase which ran from that forecourt at basement level to the walkway. A sign, 20cm by 6cm on a wall at a level around the height of the top step of the metal staircase (when it was in place), stated: “This staircase and forecourt Is private property. No public right of way” The respondents, who were solicitors, had operated their business from 5 Derby Terrace between 1991 and 1996 when they acquired number 6 and commenced practising from there. They sought to register a right of way acquired by prescription over the garden by foot to gain access to number 6 on the basis that they and others had used the staircase to access number 5 since 1991 and number 6 since 1996. The appellants objected to the application, relying on the sign, and the Land Registry referred the application to the First-tier Tribunal for determination. The law Where an easement is claimed on the basis of prescription, the relevant use relied on must be user as of right. So the user must not be by force (ie contentious or only allowed under protest), in secret nor by permission (R v Oxfordshire County Council ex parte Sunningwell Parish Council [1999] 2 EGLR 94). The continuous presence of clearly visible signs can be sufficient to render user contentious (Winterburn v Bennett [2016] EWCA Civ 482; [2016] EGLR 35), but whether a single sign is sufficient is a fact-sensitive question, depending on the size and topography of the land over which the right is claimed. The fundamental question when considering a sign or notice is what it conveys to the user. The aim is to let the reasonable user know that the owner objects and contests his user. A notice should be read in a common sense and not a legalistic way (R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and another) v Oxfordshire County Council [2010] EWHC 530 (Admin)). A sign reading “Warning It is dangerous to trespass on the golf course” was insufficient to make it clear that the landowner was not acquiescing in use of the land by others in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWHC 1813 (Admin); [2010] 1 EGLR 153, but “Private Property. Access prohibited” was in Oxfordshire County Council v Oxford City Council [2006] Ch 43. The FTT decision The FTT found that the relevant area of number 4 had been used for the benefit of the owners and occupiers of number 6 as of right for a period of more than 20 years from no later than 2 December 1996. A photograph showed the sign in place in July 2000 and, while small and high off the ground, it could be read by anyone going up the staircase. However, the reference to “no public right of way” was insufficient to prevent the acquisition of a private right of way. Had it said “no right of way” the position would have been entirely different.  The appellants argued that the judge’s construction of the wording of the sign was wrong: the words “no public right of way” were sufficient to render the use contentious and not as of right. The respondents, by way of cross-appeal, argued that the sign was too small and wrongly placed to be legible to a normal user of the staircase and so incapable of preventing prescriptive rights from accruing. The judge had also failed to properly evaluate the evidence of user of the staircase. The Upper Tribunal decision The Upper Tribunal dismissed the cross-appeal. It was not prepared to interfere with the judge’s finding of fact on the legibility of the sign, which was not obviously wrong, and the weight to be given to the evidence – whether it was the respondents not recalling seeing the sign or lack of evidence of those who did – was a matter for the judge. However, the tribunal disagreed with the judge that the effect of the wording was to exclude a public but not a private right of way. The wording stated that the staircase and forecourt was private property. It was difficult to see what message it conveyed other than that the garden was private land and not to be used by others and that such use was contentious. The reasonable user – who must be taken to have read the whole wording – would have understood that they had no right to use the garden as a short cut to the walkway. Consequently, the use was not as of right and the respondents could not rely on the doctrine of prescription. Key points A prescriptive easement is acquired by user as of right, without force, secrecy or consent A single sign can suffice to render user contentious provided that it clearly conveys that the owner objects and contests such use Image © Matt Seymour/Unsplash Louise Clark is a property law consultant and mediator