Burrows (on behalf of Wraysbury Action Group), R (on the application of) v The Royal Borough of Windsor and Maidenhead & Anor

For a town or village green application, public use ceases to be “as of right” when the landowner takes steps which communicate to ordinary reasonable users that access is not permitted without permission. Suitably worded signs can make subsequent use contentious. It is unnecessary that every user saw the signs if the landowner’s steps objectively communicated opposition to the generality of users. The words must be assessed in their full context, as a matter of law, by reference to the message conveyed to an ordinary reasonable reader. A sign stating “PRIVATE PROPERTY” and that access is by permission of the owners conveys that there is no right to use the land. The Court of Appeal’s approach in Taylor v Betterment Properties (Weymouth) Ltd governs inconsistent first-instance approaches.

The claimant, acting on behalf of the Wraysbury Action Group, challenged the local authority’s decision not to register Thamesfield as a town or village green under section 15 of the Commons Act 2006. An inspector had conducted a public inquiry and concluded that longstanding recreational use had ceased to be “as of right” in July 2007, when signs were erected stating “PRIVATE PROPERTY” and that access was by permission of the owners. The application was made on 11 March 2010, outside the statutory two-year period if that conclusion was correct. Permission for judicial review had been refused on the papers, and the matter came before the court as a renewed permission application. The central issues were whether the inspector applied the correct legal approach and whether the signs were prohibitory.

1. Renewed permission application refused. The proposed judicial review claim was not arguable with a reasonable prospect of success.
2. The inspector’s unchallenged findings established that signs had been placed at four major entrances for about a month and that their message would have been communicated to the vast majority of regular local users. The inspector was entitled to treat the signs as sufficient to show that the landowner did not acquiesce in continued public use.
3. The applicable approach was that in Taylor v Betterment Properties (Weymouth) Ltd [2012] EWCA Civ 250. Where suitably worded signs are seen by users, subsequent use is contentious. Alternatively, the landowner’s steps need only be proportionate to the use which the landowner seeks to prevent and sufficient to bring the opposition to the attention of a reasonable user. It is irrelevant that particular users did not see or understand the signs where the objective communication to reasonable users is established.
4. The inspector’s reliance on the objective understanding of an ordinary reasonable reader was legally correct. Whether wording is prohibitory or permissive is a question of law, assessed in the full context rather than by reference to the landowner’s intention or an individual reader’s understanding.
5. “PRIVATE PROPERTY” followed by “Access to this land is by permission of the owners” would convey to an ordinary reasonable reader that there was no right to use the land. The signs were therefore prohibitory and capable of bringing the recreational use to an end as use “as of right”.
6. The court expressly confined its ruling to the permission stage and stated that it should not be treated as authoritative on the merits. The renewed application was refused.

This was a renewed application for permission to apply for judicial review. Permission had previously been refused on the papers by Lewis J on 27 September 2013. The renewed application was refused by the High Court (Administrative Court).