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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Burrows (on behalf of Wraysbury Action Group), R (on the application of) v The Royal Borough of Windsor and Maidenhead & Anor [2014] EWHC 389 (Admin) (21 February 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/389.html Cite as: [2014] EWHC 389 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2014

MR JUSTICE FOSKETT:

1. This matter came before me on 14 February as a renewed application for permission to apply for judicial review, permission having been refused on the papers by Lewis J on 27 September 2013. After oral argument lasting for about two hours I decided to reflect on the papers further having had the benefit of those arguments and to put my ruling in writing.
2. The application relates to the decision of the Royal Borough of Windsor and Maidenhead ("the Local Authority") made on 4 June 2013 to decline to register land known as Thamesfield in Wraysbury as a town or village green ("TVG") pursuant to section 15 of the Commons Act 2006.
3. The issues that were joined between the Claimant, on the one hand, and the owners of the land in question (referred to as 'WESL'), on the other, were subjected to the usual process in this context, namely, their investigation by an Inspector appointed by the local authority to conduct a non-statutory public inquiry and then to provide a report to the local authority. The Inspector appointed in this case was Mr Vivian Chapman QC, a well known and highly regarded practitioner in this particular field, who has acted in many inquiries of this nature. He held an inquiry lasting some nine days and received evidence from over 180 witnesses. His report dated 25 February 2013 ran to 91 pages and to 337 paragraphs. He supplemented that report by two additional reports. He encapsulated his conclusion conveniently in an Executive Summary on the first page of his main report which reads as follows:

"This report concludes that although Thamesfield has been used for lawful sports and pastimes by significant number of the local people for more than twenty years, such use became contentious and ceased to be use "as of right" in July 2007 and that the application fails because it was not made within two years of that cessation."

4. To put that conclusion into context, it should be noted that the application to register the land as a TVG was made on 11 March 2010. Section 15(3) of the 2006 Act effectively provides that if the user "as of right" had ceased before the commencement of the two-year period prior to the application being made, registration as a TVG could not take place. It follows that if the user "as of right" ceased in July 2007, the application was made outside the two-year period of "grace" provided for by section 15(3).
5. Since the local authority accepted the Inspector's conclusions with no modification, its decision to refuse to register the land as a TVG has to be attacked, if it is to be attacked at all, on the basis that the Inspector was wrong in the conclusions he reached.
6. In short form, what the Inspector decided was that certain signage erected at various points in and around the land in question as from July 2007 was sufficient to bring to an end any use "as of right" that had been enjoyed hitherto. He accepted the substantial weight of evidence he had received to the effect that for at least 30 years prior to 2007 the local community had used the land for lawful sports and pastimes. Accordingly, there was general community use and that use was "as of right" within the meaning of the Act. However, his conclusion was that that use "as of right" ceased in or about July 2007.
7. Mr Paul Wilmshurst, who appeared before the Inspector on behalf of the Claimant and before me on this application, does not challenge any of the Inspector's findings of fact. A material finding about when the notices (to which I will refer further below) were erected was expressed in the following terms:

"These signs were not placed at every entrance to Thamesfield. There was no sign at the entrance from FP8 at the north-eastern corner of Thamesfield, at the various entrances through the boundary with the Kayles or at the southern entrance on Friary Road. However, I am satisfied that, if those signs remained in place for any material length of time, the message conveyed by the signs would have been communicated to the vast majority of local people who regularly used Thamesfield for informal recreation, either by seeing the signs or being told about them by other users. The sign at the Coppice Drive entrance has remained in place ever since, although it has periodically been pulled down and reinstated by Mr Butler. The evidence of postings on the Wraysbury Watchdog Forum dated 20^th, 29^th and 30^th July 2007 shows that the other signs were in place until the end of July 2007. However, they were subsequently torn down and disappeared. I find that the July 2007 signs, other than the Coppice Drive entrance sign, were in place for about a month. It is true that there are many local witnesses who have given evidence that they were unaware of the July 2007 signs. It is not possible to say of any one witness that he or she is not telling the truth about the 2007 signs because, in the case of every witness, there might be some good reason why he or she did not see or hear tell of the signs, e.g. being away on holiday or happening to access Thamesfield for a while by an entrance at which a sign was not erected. However, I find it wholly incredible that the vast majority of regular users of Thamesfield would not have seen or been told of these highly contentious signs, placed at four of the major entrances to Thamesfield, which challenged public use of the field which had been enjoyed unimpeded for so many years." (Emphasis added.)

8. The second finding (partly of fact and partly of law) was expressed as follows:

"The wording of the signs erected … in early July 2007 was as follows:

'PRIVATE PROPERTY

Access to this land is by permission of the owners'

The wording of the signs is not happy, since it is arguably ambiguous as to whether the signs are prohibitory or permissive signs. The wording is potentially capable of two alternative meanings. It could mean that, although Thamesfield is privately owned, the owner gives general permission to all and sundry to access the field. Alternatively, it could mean that no one is entitled to access Thamesfield without the permission of the landowners. The issue is what the signs would be understood to mean by the ordinary reasonable reader of those signs and is not determined by what WESL intended it to mean nor what any particular person reading the sign understood it to mean. I consider that the ordinary reasonable reader of the signs would understand them to be prohibitory signs. The words "PRIVATE PROPERTY" appear at the top of the sign in large capital letters. These words ordinarily carry the message that the public have no right to use the land. I do not think that any ordinary reader (unversed in the technicalities of the law relating to prescription) would understand the reference to permission as being other than a reinforcement of the message given by the "PRIVATE PROPERTY" heading by making it clear that no one was entitled to enter the land except with the owner's permission."

9. It is at this point that Mr Wilmshurst contends that the Inspector (arguably, for present purposes) went wrong. He submits that the Inspector adopted the wrong legal test as to whether the user of the land became "contentious" after July 2007. Having reviewed a number of authorities, including Taylor v Betterment Properties (Weymouth) Ltd [2012] EWCA Civ 250, the Inspector expressed himself thus:

"The true principle is that use is "contentious" if the landowner takes steps which would signify to the reasonable user that he does not acquiesce in the user. It does not matter whether those steps involve verbal dispute, physical obstruction, legal proceedings or just correspondence. Nor does it matter whether there are individual users who claim to have been unaware of those steps. As Sullivan J pointed out in Cheltenham Builders, since Sunningwell the question is how the matter would have appeared to the landowner. Hence the reference in the Warneford Meadow and Betterment cases to the reasonable user."

10. As I have said, Mr Wilmshurst submits that this formulation is incorrect. He made submissions to the Inspector after his report became available and invited him to change his view. The gist Mr Wilmshurt's arguments can be seen from the way the Inspector answered them in his Further Report dated 3 May 2013. The relevant paragraphs are as follows:

"[8] The applicant has served very detailed submissions settled by Mr Wilmshurst and dated 5th April 2013. Having read and reflected on those submissions with care and respect, it seems to me that they can fairly be summarised in two propositions:

The signs erected on the instructions of WESL in July 2007 were not suitably worded to prohibit future public access to Thamesfield, and

Even if they were suitably worded, they were not enough to render future public use of Thamesfield "contentious" and not "as of right".

[9] I will first consider the argument that the 2007 signs were not adequately prohibitory in their wording. It will be recalled that the signs read:

PRIVATE PROPERTY

Access to this land is by permission of the owners

I considered the meaning of these signs in paragraph [309] of my Report. I have reconsidered that paragraph and remain of the same view. I do not consider that any ordinary reasonable person reading these signs would understand them to mean that the landowner was granting all and sundry permission to use the land. I consider that the ordinary reasonable person reading those signs would understand that the landowner was forbidding access to the land except with his permission. I conclude that although the signs could have been better worded their meaning is clearly prohibitory.

[10] Secondly, I turn to consider the argument that, even if the wording of the signs was prohibitory, the signs were insufficient to render public use of Thamesfield contentious and hence not "as of right". The conclusion I reached on this point is set out in paragraph [331] of my Report. In short, I considered that the erection of these signs at four of the major entrances to Thamesfield and their being in position for about a month, was sufficient to communicate to the generality of recreational users of Thamesfield that the landowner was not acquiescing in that use. I have reconsidered that conclusion and, having done so, remain of the same view."

11. The Inspector also rejected the suggestion made by Mr Wilmshurst (which he has repeated in the proposed judicial review application) that he failed to apply the test laid down in the Betterment case (see paragraph 9) above. He said that he considered that the Court of Appeal decision supported his view of the signs and he quoted certain parts of the judgment of Patten LJ in support of this view.
12. The first of the paragraphs he cited was paragraph 38:

"If the landowner displays his opposition to the use of his land by erecting a suitably worded sign which is visible to and is actually seen by the local inhabitants then their subsequent use of the land will not be peaceable. It is not necessary for Betterment to show that they used force or committed acts of damage to gain entry to the land. In the face of the signs it will be obvious that their acts of trespass are not acquiesced in …."

13. He then quoted also part of paragraph 41 which follows the quotation by Patten LJ of what Pumfrey J, as he then was, said in Smith v Brudenell-Bruce [2002] 2 P&CR 51:

"This requires to be unpacked a little. Assuming that the notice is in terms sufficiently clear to convey to the average reader that any use of the relevant land by members of the public will be treated as a trespass then it will be irrelevant that individual users either misunderstood the notice or did not bother to read it. The inhabitants who encounter the sign have to be treated as reasonable people for these purposes to whom an objective standard of conduct and comprehension is applied …."

14. Finally, he quoted part of paragraph 48 that I have italicised below, though I think it helpful to set out the whole of the paragraph:

"The test formulated by Morgan J in paragraph 121 of his judgment specifies two alternative approaches to the question of notice. If the landowner erects suitably worded signs and they are seen by would-be peaceable users of the land then it follows that their user will be contentious and not as of right. That is the easy case. The alternative is an objective test based on knowledge being attributed to a reasonable user of the land from what the landowner did in order to make his opposition known. If the steps taken to manifest that opposition are sufficient to bring it to the attention of any reasonable user of the land then it is irrelevant that particular users may not have been aware of it. The steps to be taken do not have to be fail safe in that regard. But they must be proportionate to the user which the landowner wishes to prevent."

15. For these reasons he rejected Mr Wilmshurst's arguments and confirmed his earlier decision.
16. Mr Wilmshurst has repeated those essential arguments in this proposed application for judicial review. Miss Jane Evans-Gordon, for the local authority, and Mr George Laurence QC and Miss Karen Jones, in written submissions on behalf of the landowner, submit that the Inspector did follow the approach set out by the Court of Appeal in Betterment and that this aspect of the Claimant's case is unarguable. That was the view of Lewis J when he considered the application on the papers.
17. I have obviously looked at the matter afresh in the light of the sustained argument advanced by Mr Wilmshurst and the relatively brief oral response of Miss Evans-Gordon. Stripped to its essentials, Mr Wilmshurst is submitting that the Inspector's effective rejection of the approach adopted in Brudenell-Bruce was inconsistent with the way that case was approached by Morgan J at first instance in Betterment, by His Honour Judge Waksman QC in R (on the application of Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council [2010] EWH Civ 530 (Admin) and by the Court of Appeal in the Betterment case itself.
18. Since this is purely a permission application, I have not followed through this line of argument in the detail that would have been necessary if I had been dealing with this on a substantive basis and, accordingly, my conclusion should not be seen (or cited) as in any way authoritative. However, as I see it, the essential issue for present purposes is whether, whatever the Inspector may have said about Brudenell-Bruce, he applied the approach of the Court of Appeal in Betterment to which, if inconsistent, all other first instance decisions must now defer.
19. As it seems to me, the Inspector plainly did follow the approach of the Court of Appeal in Betterment. The arguments of Miss Evans-Gordon, Mr Laurence and Miss Jones are to the effect that the Inspector decided that this was in the "easy case" category referred to in the quotation from Patten LJ's judgment set out in paragraph 14 above. Mr Wilmshurst replies vigorously that nowhere in his main or subsequent report does the Inspector say that this is what he was doing.
20. That may be so, but it seems to me plain that he was indeed doing just that and his (unchallenged) findings of fact about the distribution of the signage and the local knowledge of that signage acquired by those who used Thamesfield could only lead to that conclusion – provided, of course, the signage itself gave the appropriate message. I will turn to that latter issue shortly, but I do not think that the point based upon the continued relevance of the approach in Brudenell-Bruce is arguable.
21. The second main point raised by Mr Wilmshurst is that the Inspector was wrong to conclude that the signage was "prohibitory" in nature. He contends that the signs (the wording of which appears in paragraphs 8 and 10 above), as a matter of law and/or commonsense, do not forbid or oppose recreational use. He draws attention to a number of cases where the courts have reflected upon the wording of signage in this kind of situation and, in particular, to the view of Lord Walker of Gestingthorpe in R (Beresford) v Sunderland City Council [2004] 1AC 889 at [72]:

"It has often been pointed out that "as of right" does not mean "of right". It has sometimes been suggested that its meaning is closer to "as if of right"…. This leads at once to the paradox that a trespasser (so long as he acts peaceably and openly) is in a position to acquire rights by prescription, whereas a licensee, who enters the land with the owner's permission, is unlikely to acquire such rights. Conversely 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.""

22. Plainly the words used on a sign must be seen in the full context in which they are used. Equally, this is not a matter of discretion or broad judgment for the Inspector or the local authority: the decision must be whether the effect of the words is, as a matter of law, either prohibitory or permissive. Only in the former position can the sign operate in favour of the landowner. In my judgment, the words used on the signs here would only convey to an ordinary reasonable reader the message that there is no right to use the land. The ambiguity to which the Inspector makes reference seems to me to be the kind of ambiguity that only a lawyer might identify: applying the test of what the ordinary reasonable reader of the sign would understand, it seems to me that there is only one answer and it is the answer at which the Inspector arrived.
23. It follows that, in my judgment, the Inspector was right in law (or, putting it another way, was not arguably wrong) to reach the conclusion in law that he did and that there is no reasonably arguable contention to the contrary.
24. For these reasons, briefly expressed, I do not consider that the proposed judicial review application is arguable with any reasonable prospect of success and, accordingly, I must refuse the renewed application.
25. I reach that conclusion with some regret. I can well understand the local community view that what has been seen a right to use Thamesfield recreationally for many years has been removed by the means of a few signs erected by those with development interests in the land. Mr Wilmshurst may be right to say that this is an area of the law that, to use his expression, is in a "state of flux". However, I can only apply the law as it is – as indeed the Inspector was bound to do – and the law on the issues raised in this application is, in my view, clear as things stand.

POSTSCRIPT

26. After seeing the draft judgment, Mr Wilmshurst has invited me to clarify two matters. First, in relation to my conclusion that this case fell into the "easy case category" as explained by the Court of Appeal in Betterment (see paragraphs 19 and 20 above), he reminded me that his argument was that this was also to be seen as a case that falls into the second category mentioned by Patten LJ and has invited me, if I think it appropriate, to say why the case does not fall within that category. The short point, in my view, is that the case so clearly falls into the first category that the second argument does not arise and, notwithstanding his invitation, I see no reason to express a view about it. Second, in relation to my conclusion (at paragraph 22) that the signs were prohibitory, he invites me to say, if I think it appropriate, whether my formulation (namely, that the signs here "would only convey to an ordinary reasonable reader the message that there is no right to use the land") was deliberately intended to be different from the Inspector's formulation (namely, "that no one is entitled to access Thamesfield without the permission of the landowners" - his emphasis). The short answer is 'no': I thought that my formulation was, to all intents and purposes, the same as that of the Inspector. The issue was what message the signs would convey to an ordinary (non-lawyer) reader.