Adam Thomas Nicholson & Anor v Ian Reginald Hale & Anor

Use relied upon to acquire an easement by prescription must be as of right. A landowner may make use contentious by maintaining an appropriately visible and legible sign. Whether a sign is sufficient is fact-sensitive and must be assessed objectively from the viewpoint of the reasonable user, in its factual and topographical context.

A sign identifying land as private property and stating that there is no public right of way may, read sensibly and as a whole, communicate that unauthorised users have no right to use the land, including for a private right of way. It need not use technical distinctions between public and private rights. An appellate tribunal reviewing a factual finding should not interfere unless the finding was not reasonably open to the first-instance tribunal or involved an error of law.

The Respondents applied to register a pedestrian right of way over land and a staircase serving premises at 4 Derby Terrace, Nottingham. They claimed that continuous use for at least 20 years had acquired an easement by prescription.

The First-tier Tribunal found that the use had been as of right and ordered the Chief Land Registrar to give effect to the application. It also found that a sign could be read by users of the staircase, but held that its wording—identifying the staircase and forecourt as private property and stating no public right of way—did not prevent acquisition of a private right.

The Upper Tribunal considered the Respondents’ cross-appeal against the finding on legibility and the Appellants’ appeal concerning the meaning and effect of the wording.

1. Cross-appeal. The finding that the sign could be read by anyone going up the staircase was a finding of fact. The appeal was by way of review, not rehearing. The finding was plainly open to the First-tier Tribunal on the evidence and disclosed no error of law. The Respondents’ evidence that they did not recall seeing the sign, and the absence of evidence from other users that they had read it, were matters of weight for the First-tier Tribunal. The cross-appeal was dismissed.
2. Applicable principles. Use relied upon for prescription must be neither by force, secretly nor by permission. “Force” includes contentious use. Continuous legible signs may be sufficient to make use contentious, and whether one sign or several are required is fact-sensitive. The notice must be assessed objectively from the standpoint of the reasonable user, read in a common-sense rather than legalistic way and in context.
3. Meaning of the sign. The wording had to be read as a whole. The words private property conveyed that the land was not open to unauthorised users. The words no public right of way reinforced, rather than qualified, that message. A reasonable user would not be expected to distinguish technically between public and private rights of way. The small area and its function as a short cut between the pavement and walkway were relevant contextual factors.
4. The First-tier Tribunal therefore erred in law in holding that the sign did not prevent acquisition of a private right. The sign was effective, at least from July 2000, to make the use contentious. Since the claimed use had to continue for 20 years or more from no later than 2 December 1996, the Respondents could not establish the required period of use as of right.
5. The decision and order of the First-tier Tribunal were set aside. The Upper Tribunal re-made the decision as one that the claim to the right of way failed and directed that the application be cancelled. The appeal succeeded on Ground 1. Ground 2 failed as a free-standing ground, although the location of the land was relevant to the construction of the sign.

• First-tier Tribunal (Property Chamber): By a decision dated 20 July 2023, the tribunal found that the Respondents had acquired the claimed right of way by prescription and ordered the Chief Land Registrar to give effect to the application.
• Upper Tribunal (Lands Chamber): The appeal was allowed on Ground 1 and the cross-appeal was dismissed. The First-tier Tribunal’s decision and order were set aside and the decision was re-made, with directions for cancellation of the application.