Sagier v Kaur

Right of way – Prescription – Registration – Appellant claiming private right of way over respondent’s land by prescription – Whether right of way acquired by prescription over private road – Whether sign warning of no public right of way – Whether sign sufficient to make use of way by neighbours contentious – Whether right of way affected by period of interruption – Appeal allowed In 1999, a new housing estate was completed adjoining Victoria Park in Smethwick, Birmingham. It included new homes on two existing public roads, Pool Road and Victoria Park Road, which ran parallel to one another. The development also included nine new houses on a new private road immediately adjacent to the park, connecting the two public roads. The private road had never been adopted and remained private land. Each of the houses on the private road had a small, paved area and its own tarmac driveway immediately to the front and side of the building. The road itself was simply the succession of driveways over which neighbours had to walk or drive to get from their own houses to the public highway at one end or the other. There was no designated footway but a narrow strip of land adjoining the park railings was not paved or tarmacked. The separation of the Victoria Park Road end of the private road from the Pool Road end by the erection of increasingly formidable barriers caused conflict between neighbours. The appellant owned 39 Pool Road and the respondent owned 60 Victoria Park Road. The appellant applied to register a private right of way over part of the respondent’s land for the benefit of his land based on 20 years use. The respondent objected to the application and the dispute was referred to the FTT, which directed the Chief Land Registrar to cancel the application. The appellant appealed. Held: The appeal was allowed. (1) If the person asserting the easement proved that the putative easement was used for the necessary period of time, openly and in a way which would bring home to a reasonable owner of the servient tenement that a right was being asserted, then that person had the benefit of an evidential presumption that the enjoyment had been as of right and, in particular, without permission and without contention. The person asserting the easement could rely on that evidential presumption so that he did not have to try to prove that there was no express or implied permission, or no contention, during the relevant period of user: see Gale on Easements, 21st Ed (2020), paragraph 4-119. Welford v Graham [2017] UKUT 297 (TCC); [2017] PLSCS 152 considered. Therefore, it was for the appellant to prove that he and his predecessor had openly made use of the claimed route to go backwards and forwards over the private road. Once he had done so, he could rely on an evidential presumption that his and his predecessor’s use had been as of right and that it had not been contentious. It was then for the respondent to defeat that presumption by showing that the use had in fact been contentious. (2) The appellant challenged the judge’s dismissal of his claim that he had acquired a prescriptive right of way under section 2 of the Prescription Act 1832 which provided that a prescriptive right might be acquired where there had been use “as of right” (without force, without secrecy and without permission) without interruption for a full 20-year period. The first limb of section 4 of the 1832 Act required that the period during which the use had to be demonstrated for a claim under the Act was a period ending on the date on which proceedings were commenced in which the right was claimed or disputed. The second limb of section 4 directed that nothing was to be deemed to be an interruption of a period of use as of right unless it was submitted to or acquiesced in for one year. The judge omitted a full consideration of the possibility of a claim under the 1832 Act. His reason was simply that the proceedings had been commenced almost three months after the obstruction of the way by the erection of a picket fence. That approach overlooked the second limb of section 4. A physical obstruction of the way which existed for less than 12 months was sufficient to rule out reliance on a claim under the Act where 20 years use could already be shown by the date of the interruption. (3) In January 2000, a neighbour had erected two signs reading “No Public Right of Way”, which were frequently removed and eventually not replaced. The general question was what the sign would convey to a reasonable user of the claimed private right. The assumed user of the route, and reader of the notice, had to be assumed to have the same background knowledge as an owner of one of the houses on the private road. The notice was not to be interpreted by asking how it would be understood by anyone living on the estate: Taylor v Betterment Properties (Weymouth) Ltd & Anor [2012] 2 P&CR 3, R (on the application of Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and another) v Oxfordshire County Council [2010] 2 EGLR 171 and Nicholson v Hale [2024] UKUT 153 (LC); [2024] PLSCS 112 considered. (4) The context in which the notice was displayed 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 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, the signs erected 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 road was private. The signs were ambiguous and insufficient to render the use contentious. Accordingly, the appeal succeeded and the Chief Land Registrar would be directed to give effect to the appellant’s application for registration of the private right of way over the claimed route over the respondent’s land. Michael Buckpitt and Paul Wilmshurst (instructed by Direct Access) appeared for the appellant; Anya Newman (instructed by Mezzle Solicitors, of Birmingham) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Sagier v Kaur