INTRODUCTION
1. This talk concerns the issue of when user will be permissive so as to prevent the following rights from arising:
· Private rights of way (easements)
· Public Rights of Way (highways)
· Village Greens and/or Recreational Easements
2. All these rights can only be acquired where the user has, in the required period, been as of right. It is well established that user as of right will usually satisfy the tripartite test in that such users will have been present on the land nec vi, nec clam, nec precario (without force, secrecy or permission). In Redcar at [87] Lord Rodger thought that the sense was better captured by putting things positively: “the user must be peaceable, open and not based on any licence from the owner of the land.” Since Sunningwell it has been settled that the subjective belief of the users as to whether they had a right to be on the land are irrelevant (this is not the same as considering whether a landowner has brought home his opposition to the reasonable user and rendered user vi or alternatively communicated a permission).
3. Where there is found on the evidence to be a permission (i.e. user which is not as of right) user is sometimes said to be by right or of right. In Beresford it was helpfully said by Lord Walker at [72] that the as of right requirement is better understood to mean “as if of right.” Also in Beresford Lord Bingham opined at [3] that user as of right does not mean that the inhabitants should have a legal right since the question is whether a party who lacks a legal right has acquired one by using the land for the stipulated period. However, some caution must be had when relying on Beresford as it was expressly found to have been wrongly decided in Barkas. But it is submitted that the only part of Beresford that was overruled was in respect of the special considerations that might apply in cases where the statutory basis of public ownership is said to have caused user to be by right without actual notice to those users (a big topic of itself).
ADDITIONAL QUESTIONS AND “USER AS OF RIGHT”: ROOM FOR DEBATE?
4. There is a continuing battle to introduce additional hurdles for those seeking to establish user as of right. In Redcarthe Supreme Court was faced with the question: is it necessary for the user to have been such as to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land? All of their Lordships were unanimous in finding that there was no additional question to be posed in addition to the tripartite test: see Lord Walker at [20]; Lord Hope at [67]; Lord Brown at [107] and Lord Kerr at [106].
5. Lord Carnwath said in Barkas at [58] and [61]:
“58. The “as of right”/ “by right” dichotomy is attractively simple. In many cases no doubt it will be right to equate it with the Sunningwell tripartite test, as indicated by judicial statements cited by Lord Neuberger PSC: paras 15–16. However, in my view it is not always the whole story. Nor is the story necessarily the same story for all forms of prescriptive right.”
61 Lord Scott's analysis shows that the tripartite test cannot be applied in the abstract. It needs to be seen in the statutory and factual context of the particular case. It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole. This includes consideration of what Lord Hope of Craighead DPSC has called “the quality of the user”, that is whether “the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right”: R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70 , para 67. Where there is room for ambiguity, the user by the inhabitants must in my view be such as to make clear, not only that a public right is being asserted, but the nature of that right.
6. On that point, Lord Neuberger (with whom Baroness Hale, Lord Reed and Lord Hughes agreed) said that:
“In the subsequent case R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, which was concerned with the 2006 Act, Lord Walker of Gestingthorpe JSC confirmed at para 20 that “‘as of right’ is sufficiently described by the tripartite test nec vi, nec clam, nec precario [as] established by high authority”. (I would be prepared to accept that it is possible that, as Lord Carnwath JSC suggests, there may be exceptional cases involving claims to village greens where this does not apply, but I am doubtful about that).”
7. Lord Carnwath repeated in Newhaven at [135]:
“As I said in Barkas [2015] AC 195, para 61 (referring to comments of Lord Scott of Foscote in Beresford [2004] 1 AC 889 , para 34):
‘Lord Scott's analysis shows that the tripartite test cannot be applied in the abstract. It needs to be seen in the statutory and factual context of the particular case. It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole.’” [emphasis added]
8. In Powell (a highway case) Dove J had an argument put before him based on Lord Carnwath’s obiter dicta. At [32] Dove J held: “I have no hesitation in concluding that it is absolutely clear from [the authorities] that there is no additional test over and above the tripartite test…” and set out his reasons at [33] – [36] which included that “posing the tripartite test is the law’s way of assessing whether or not it would be reasonable to expect that the owner would resist the use” and that “the case of Lewis is clear authority for the proposition that in fact there is no additional test beyond the tripartite test.”[1]
IS THE “AS OF RIGHT” TEST ALWAYS THE SAME?
9. In Beresford Lord Scott said at [34]:
“It is a natural inclination to assume that these expressions, "claiming right thereto" (the 1832 Act), "as of right" (the 1932 Act and the 1980 Act) and "as of right" in the 1965 Act, all of which import the three characteristics, nec vi, nec clam, nec precario, ought to be given the same meaning and effect. The inclination should not, however, be taken too far. There are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous.”
10. How does this apply to claims for private easements? In Redcar Lord Walker said this at [37]:
“There is in my opinion a significant difference, on this point, between the acquisition of private and public rights. As between neighbours living in close proximity, what I have referred to as “body language” may be relevant. In a Canadian case of that sort, Henderson v Volk (1982) 35 OR (2d) 379, 384, Cory JA (delivering the judgment of the Court of Appeal of Ontario) observed:
“It is different when a party seeks to establish a right-of-way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient tenement. In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use. It is right and proper for the courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant was established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor.”
38 That is, if I may say so, obviously good sense. But I do not think it has any application to a situation, such as the court now faces, in which open land owned by a local authority is regularly used, for various different forms of recreation, by a large number of local residents.”
11. In Tara Hotel (a private easement case) where a written licence was held not be binding on successors in title or to render user by right, it appears that the argument that words and conduct between neighbours might have different effects than indicated by the village green cases was missed at trial. On appeal, the Court of Appeal declined to allow the point to be argued (although expressed some scepticism as to whether it would have made any difference on the facts). It is interesting to ponder as well as to whether the test for contentious user is the same as for contentious user should be the same or can be applied in a similar manner when dealing with public rights of way and village greens.
IMPLIED PERMISSION FROM CONDUCT
12. Permission can be express or implied. In each case the permission derives from an overt act of the landowner. Permission can never be implied from mere inaction.
13. The Mann case in the High Court is an example of implied permission arising through conduct. The case concerned a large area of rough grassland near a pub that had been successively owned by Bass Plc. and then by Punch Taverns Property Ltd. Occasionally throughout the relevant 20-year period beer festivals and funfairs had been held on the land. In relation to the beer festivals there was a marquee and it was necessary to buy a ticket in order to gain access to it. The events that the Inspector was told about at inquiry took place on only part of the application land and, so he held, did not prevent local inhabitants from using the rest of the land for their informal recreation in much the same way as they always did. The landowner argued that the holding of these events gave rise to an implied permission.
14. In the Mann case the judge explained how permission can be implied (and it is submitted that this survives the Supreme Court’s decision in Barkas which overturned the decision in Beresford):
· When approaching the question of implied permission “it is necessary to scrutinize all the circumstances of the particular case to determine whether the grant of permission or implied licence is made out, whether by reason of 'overt acts' or 'demonstrable circumstances or, indeed, 'relevant circumstances'” (see Beresford at [59] per Lord Rodger).”
· That the vitiating circumstance of permission need only be established once in an entire 20 year period to prevent user as of right.
· That in the absence of an clear reason to hold otherwise “any act by the owner relating to part of the land, as occurred in this case, may be taken to be referable to the whole land.”
15. The judge then spelt out, with paragraph references to Beresford, what amounts to 6 principles that can be quoted as follows:
I. The owner must make it clear that the public's use of the land is with his permission and that that may be shown by excluding the public on occasional days.
II. He must do something on his land to show that he is exercising his rights (as owner) over his land and that the public's use is by his leave.
III. There must be a positive act by owner qua public though a notice is not necessary provided the circumstances relied on allows the inference to be drawn.
IV. Implied consent by taking a charge for entry or similar overt act communicated to the public is sufficient without the need for express explanation or notice.
V. Such conduct need only occur from time to time (I should add, perhaps once only during the period under scrutiny).
VI. Such conduct will be expected to have an impact on the public and show that when the public have access (I should add, to all or part of the land) they do so with the leave or permission of the owner.
16. However, in the Goodman case Dove J threw doubt on the applicability of the Mann case to public land when he held that the conduct of a private landowner should be construed differently to a public landowner: in the case of the former this may well be consonant with furthering commercial interests. Second, the nature and character of the events – circuses and funfairs - although charged for – were held to be “arguably not inconsistent with a public entitlement to use the land” rather than purely commercial. Dove J emphasised the fact sensitive nature of the enquiry.
SIGNS THAT PERMIT ENTRY: IS THERE A NEED FOR THE PERMISSION TO BE REVOCABLE?
17. Lord Walker’s (in)famous obiter dictum in Beresford at [72] was that: “a landowner who puts up a notice stating "Private Land - Keep Out" is in a less strong position, if his notice is ignored by the public, than a landowner whose notice is in friendlier terms: "The public have permission to enter this land on foot for recreation, but this permission may be withdrawn at any time".
18. Use of land that is permissive is not as of right and will not be use which can give rise to prescriptive rights. Landowners whose land is subject to regular trespass often think that a permissive sign is preferable to a prohibitory sign because it is less provocative.[2]
19. One might think that the wording of a permissive sign would be easy to draft, but there has been a difference of opinion between judges at the highest level on what is necessary to word a valid permissive sign.
20. In Beresford, Lord Scott gave two examples of signs. The first was:
The public may use this path as a public highway
Lord Scott said that subsequent use of the path would not be permissive but “as of right.” The second example was:
The public may use this land for recreational purposes as a village green
His Lordship said that subsequent use of the land for recreation would not be permissive but as of right. In order to make use permissive, it would be necessary for the sign to make it clear that permission was temporary or revocable.
21. In Barkas, Lord Neuberger disagreed with Lord Scott. At [37] he said that if a landowner erected a sign permitting use of his land as a village green, use would be permissive and not as of right. Such a sign would amount to a temporary permission so long as the permission subsisted. Three of the other Judges of the Supreme Court agreed.
22. However, neither the comments of Lord Scott nor those of Lord Neuberger were actually part of the reasoning on which the case was decided. However, it seems to me that, when drafting a sign intended to be permissive, it would be prudent to word it so that it was permissive, whether Lord Scott or Lord Neuberger was right. Suggested wording would be:
PRIVATE LAND
The public are hereby given permission by the landowner
to enter on his land but such permission can be withdrawn at any time.
23. If there is any scope for doubt about what land is subject to the notice, the land should be described on the sign either verbally or by a map. A sufficient number of signs will need to be erected in visible locations and in sufficient quantity.
SIGNS GIVING IMPLIED PERMISSION
24. Sometimes, a sign may, by prohibiting certain activities, impliedly permit other activities. In Newhaven Lord Neuberger discussed implied permission in the context of byelaws. At para. 58, he said that a prohibition on bringing dogs into a park except on leads must imply a permission to bring dogs into the park if they are on leads.
25. However, it is not always easy to decide whether a prohibitory sign carries with it an implied permission. Two examples. First:
NO DOGS
26. Does this sign carry with it implied permission to use land for recreation provided that people do not bring dogs with them? Second:
NO BALL GAMES
27. Does this sign carry with it implied permission to use the land for recreation other than ball games? In TW Logistics there was also an argument made that a “No Fishing” sign had conveyed an implied permission to do other activities (based on the dictum of Lord Neuberger in Barkas). Barling J rejected that argument at [108]:
“The argument is that the prohibition of fishing carries with it implied permission to carry out other forms of recreational activity. I do not consider that the notice would or could reasonably be interpreted or understood in that way. It is very different from Lord Neuberger PSCs dogs must be kept on a lead in the park example. There the very nature of the requirement clearly spells out what is permitted dogs on a lead there is hardly a need for any implication. Here, by contrast, the ban on fishing says absolutely nothing about what other activities may or may not be permitted the sign is purely concerned with fishing.” (emphasis added)
28. The moral is perhaps that if a landowner wants to erect a permissive sign, it should give permission expressly.
SPECIAL CASES
29. Are there special categories of land where the normal rules do not apply? It seems that there are. First, in NewhavenLords Neuberger and Hodge (giving the lead judgment) spelt out 3 possible conclusions that a future court might come to as to the foreshore and other beach areas at [29]:
“At least where there is no express permission from the owner of the foreshore, there are in principle at least three possible conclusions in relation to the issue of the public's right to use the foreshore for bathing, by which we mean using the foreshore as access to the sea at low tide, or bathing in the sea over the foreshore at high tide (or a combination of the two), plus associated recreational activities. The first is that members of the public have, as a matter of general law and irrespective of the wishes of the owner of the foreshore, the right to use the foreshore for the purpose of bathing, as a matter of general common law. The second possibility is that the owner of the foreshore is presumed to permit members of the public to use of the foreshore for the purpose of bathing, unless and until the owner communicates a revocation of its implied permission. The third possibility is that members of the public have no right to use the foreshore for bathing, in which case they are trespassers.
30. Second, in Newhaven it was held that byelaws which were not, as a matter of fact, communicated to the local population, were enough to render user impliedly permissive. Ignorance of the (local) law was no defence!
© Paul Wilmshurst
New Square Chambers
April 2018
CASES REFERRED TO ABOVE
Case name
Commonly called
Judge / Court
Citation
R (Beresford) v Sunderland CC
Beresford
House of Lords
[2004] 1 AC 889
R (Lewis) v Redcar and Cleveland BC
Redcar
Supreme Court
[2010] AC 70
London Tara Hotel Ltd v Kensington Close Hotel Ltd
Tara Hotel
Court of Appeal
[2012] 1 P. & C.R. 13
R (Mann) v Somerset CC
Mann
HHJ Owen DHCJ
[2012] EWHC B14 (Admin)
R. (Malpass) v Durham CC
Malpass
HHJ Kaye DHCJ
[2012] EWHC 1934 (Admin)
R (Newhaven Port & Properties Ltd) v East Sussex County Council
Newhaven
Court of Appeal
[2014] QB 186 & 282
R (Barkas) v North Yorkshire CC
Barkas
Supreme Court
[2014] UKSC 31
R. (on the application of Newhaven Port and Properties Ltd) v East Sussex CC
Newhaven
Supreme Court
[2015] A.C. 1547
R. (on the application of Goodman) v Secretary of State for Environment, Food and Rural Affairs
Goodman
Dove J
[2016] 2 All E.R. 701
Powell v The Marine Management Organisation
Powell
Holgate J
[2017] EWHC 1491 (Admin)
TW Logistics Ltd v Essex CC
TW Logistics
Barling J
[2017] EWHC 185 (Ch)
CASES REFERRED TO A
[1] See also Lewison LJ in Tara Hotel at [74]: “74. In my judgment this [Lewis] is clear authority at the highest level that if a use satisfies the tripartite test (not by force, nor stealth, nor the licence of the owner) then a prescriptive right will be established. There is no further criterion that must be satisfied. As Lord Kerr put it, once those three criteria are established it is ipso facto reasonable to expect the landowner to challenge the use. In other words, once these three criteria are established the owner is taken to have acquiesced in the use. It follows, in my judgment, that unless the use by KCL was forcible, stealthy or permissive a right of way will have been established.’”
[2] In the case of land at risk of a village green application, this could be a big mistake. This is because of a little-known provision in s. 15(7)(b) of the Commons Act 2006. The effect of this provision is that if there has already been 20 years’ qualifying use of land, qualifying use will be deemed to continue if it becomes permissive. It only applies if permission is granted after s. 15(7)(c) came into force in April 2007: Newhaven in the Court of Appeal at [31]. It follows that if land has been used by local people for some years, it is unwise to give permission for future use because an applicant may be able to establish that the land had already been used for 20 years before permission is granted and continuing use will still be “as of right”.