[2024] UKUT 00153 (LC)

This appeal raises an interesting question on the nature and terms of signage which are required in order to prevent the acquisition of a right of way by prescription.

The Appellants are the freehold owners of a property known as 4 Derby Terrace, Nottingham NG7 1ND (“Number 4”). The Respondents are the freehold owners of a property on the same terrace of properties, next door but one to Number 4, which is known as 6 Derby Terrace, Nottingham NG7 1ND (“Number 6”).

On 17^th September 2021 the Respondents applied to the Land Registry for registration of a right of way over an area at the front of Number 4 (“the Application”). The Respondents’ case was that they have acquired the right of way by prescription. The Appellants objected to the Application. As I understand the terms of this objection, the Appellants’ case, or a key part of the Appellants’ case was that there was a sign on the relevant part of Number 4, adjacent to an open set of steps or staircase, which had been effective to prevent the acquisition of a right of way by prescription.

By reason of the Appellants’ objection to the Application, the Land Registry referred the Application to the Property Chamber of the First-tier Tribunal (“the FTT”) for determination. The reference was made on 21^st February 2022. The Application was heard before Judge McAllister (“the Judge”) on 27^th June 2023.

By her decision on the Application, dated 20^th July 2023 (“the Decision”) the Judge found that the relevant area of Number 4 had been used, for the benefit of the owners and occupiers of Number 6, for a period of 20 years and more from no later than 2^nd December 1996. So far as the sign was concerned, the Judge found that the sign would have been visible to those going up the steps on Number 4, but decided that the wording of the sign was insufficient to prevent the acquisition of a private right of way.

With the permission of the Judge the Appellants appeal against the Decision, on the basis that the Judge was wrong to decide that the wording on the sign was insufficient to prevent the acquisition of a private right of way (“the Appeal”).

There is also a cross appeal. The status of the cross appeal (“the Cross Appeal”) is uncertain, in the sense that there is a question mark over whether permission has been granted for the Cross Appeal. Subject to this question, what the Respondents wish to argue, by way of the Cross Appeal, is that the Judge was wrong to find that the sign would have been visible to those using the relevant part of Number 4. As such, the sign was not effective to prevent the acquisition of a private right of way, whatever the effect of the wording of the sign.

At the hearing of the Appeal the Appellants were represented by Mr Paul Wilmshurst, counsel instructed on a direct access basis. The Respondents appeared in person. Mr Ian Hale acted as advocate for the Respondents at the hearing of the appeal. The Respondents are both solicitors. As such, Mr Hale was at no professional disadvantage in acting as advocate. It is however right that I should record the clarity and economy with which Mr Hale made his oral submissions. I am grateful to both advocates for their assistance in their oral submissions and (in this case including Mrs Jacqueline Hale, the Second Respondent) in their written submissions.

I should also mention that Mr Wilmshurst did not appear at the hearing of the Application before the Judge (“the Hearing”). The Appellants were represented by different counsel, Mr Taylor, although I do not think that anything turns on the change of counsel. The Respondents appeared in person at the Hearing.