Adam Thomas Nicholson & Anor v Ian Reginald Hale & Anor
[2024] UKUT 153 (LC)
Mohammed Sagier v Harbans Kaur
29 July 2024
[2024] UKUT 217 (LC)
Upper Tribunal
A neighbour claimed a path across another's land after using it for 20 years. The other neighbour argued signs saying 'no public right of way' stopped this. The court decided the signs were unclear and didn't stop the neighbour getting the right to use the path.
Key Facts
- •Mr Sagier claimed a right of way over Mrs Kaur's land based on long use.
- •The right of way was over a private road serving a housing development.
- •A low barrier, later replaced with a higher fence, partially blocked the road.
- •Signs stating "No public right of way" were erected and subsequently removed.
- •Mr Sagier and his predecessor used the route for over 20 years.
- •Mrs Kaur argued the use was contentious due to the signs and an oral protest.
Legal Principles
Acquisition of rights over land by long use (prescription).
Common law and Prescription Act 1832
Lost modern grant: presumption of a grant from long use.
R v Oxfordshire County Council ex p Sunningwell Parish Council [2000] 1 AC 335
Use must be 'as of right': not by force, secretly, or with permission.
Dalton v. Angus & Co. (1881) 6 App.Cas. 740; Newnham v Willison (1987) 56 P&CR 8
Contentious use: owner's protests (e.g., signs) can negate 'as of right'.
Dalton v. Angus & Co. (1881) 6 App.Cas. 740; Winterburn v Bennett [2016] EWCA Civ 482
Prescription Act 1832, ss. 2 & 4: requirements for uninterrupted use and interruptions.
Prescription Act 1832, ss. 2, 4; Reilly v Orange [1955] 2 QB 112
Burden of proof: claimant proves open use; owner proves contentiousness.
Welford v Graham [2017] UKUT 297 (TCC)
Effect of signs: must be clear and unambiguous to prevent acquisition of rights.
Taylor v Betterment Properties (Weymouth) Ltd & Anor [2012] EWCA Civ 250; Nicholson v Hale [2024] UKUT 153 (LC)
Outcomes
Appeal allowed.
The signs were not sufficient to make the use contentious; the single oral protest occurred after the 20-year period; the short interruption caused by the fence was insufficient under the Prescription Act 1832.
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