[2024] UKUT 00153 (LC)

Fecha: 01-Ene-2024

The Appeal

42.

The Judge granted permission to appeal to the Appellants by an order made 19^th September 2023. Permission to appeal was granted only in respect of grounds 1 and 2 in the Appellants’ application for permission to appeal.

43.

The permitted grounds of appeal (grounds 1 and 2) are as follows:

(1)

The first ground of appeal (“Ground 1”) is that the Judge went wrong in law in her construction of the Wording. The Appellants contend that the Wording was sufficient to prevent the Use from being as of right.

(2)

The second ground of appeal (“Ground 2”) is not quite so easy to summarise. The Appellants contend that the Judge was wrong to construe the words “NO PUBLIC RIGHT OF WAY” as not affecting the acquisition of a private right of way. As I understand the Appellants’ argument in Ground 2, it is, in essence, as follows:

(i)

Users of the Staircase would have been using the Staircase to pass between the Pavement, which is a public highway, and the Walkway which, if not a public highway, is an area to which the public has access.

(ii)

In these circumstances a reasonable owner of the Blue Land would have considered that they had done enough, by the erection of the Sign, to render use of the Staircase contentious and not as of right.

(iii)

Essentially those using the Staircase were using it as if they were members of the public passing from one location, namely the Pavement, to which members of the public had free access, to another location, namely the Walkway, where members of the public also had free access.

(iv)

As such and even if, contrary to Ground 1, the Wording would not otherwise have been sufficient to render the Use contentious and not as of right, the reference to no public right of way on the Sign, given the particular location of the Staircase, was sufficient to achieve this result.

44.

Ground 3, for which permission was not granted, concerns the question of the extent of the Blue Land which should be subject to the Right of Way, assuming that the Right of Way has been validly acquired. I understand that the Judge is prepared to deal with this question in the exercise of her powers of review of the Decision. It will also be appreciated that this third ground of appeal only arises if the Order stands. In these circumstances ground 3 is not, in any event, relevant to what I have to decide in what I am referring to as the Appeal. The Appeal is concerned with whether the Judge was right to decide that the Sign was insufficient to prevent the Use being as of right. As such, I am not concerned with ground 3.

45.

In summary therefore, and on the basis of the arguments contained in Grounds 1 and 2, the Appellants say that the Judge was wrong to decide that the Sign was insufficient to prevent the Use being as of right.