[2024] UKUT 00153 (LC)

The response of the Respondents to the Appeal and the grounds of the Cross Appeal are set out in a document described as a Respondents Notice and Cross Appeal. The document is undated, but the index to the appeal bundle gives its date as 17^th November 2023.

The first part of this document contains (under the headings of “Ground 1” and “Ground 2”), the reasons why the Respondents say that the Judge was right to decide that the Sign was insufficient to prevent the Use being as of right. The second part of the document contains the grounds of the Cross Appeal.

The grounds of the Cross Appeal are not numbered, but the argument of the Respondents is helpfully summarised in the conclusion to the grounds, in the following terms (I have added the square brackets around what appears to be a misplaced double negative in ground 2):

Essentially therefore, the Respondents challenge, by the Cross Appeal, the finding of the Judge, in Paragraph 59, that the Sign could be read by anyone going up the Staircase. The Respondents’ case is that the Wording was insufficiently legible to be seen or read by those using the Staircase, as borne out by their own evidence that neither of them could recall reading the Sign or being aware of the Sign when using the Staircase. As such the Sign was insufficient to prevent the Use being as of right, regardless of what the effect of the Wording would have been if the Sign had been legible.

The grounds of the Cross Appeal seek the setting aside of the relevant part of the Decision and its replacement with a determination that the Sign was too small to be legible to a normal user of the Staircase. In their skeleton argument for the hearing of the Appeal and the Cross Appeal the Respondents put forward an alternative case, if they were successful in overturning the relevant part of the Decision. The alternative case was that the question of the visibility of the Sign should be remitted to the FTT for determination. In oral submissions Mr Hale identified the outcome sought on the Cross Appeal as the setting aside of the relevant part of the Decision and a remission of the question of the legibility of the Sign to the FTT. In further written submissions, which I received after the hearing of the Appeal and Cross Appeal, in circumstances which I will explain in the next section of this decision, the Respondents reverted to their previous position. By this I mean that the Respondents returned to their primary case that, if the relevant part of the Decision was overturned, I should substitute a determination that the Sign was neither of a suitable size nor in a suitable location to prevent the Use being as of right. Alternatively I should remit this question to the FTT for determination.

There is, as I have said, a question mark over whether permission has been granted for the Cross Appeal. By her order of 19^th September 2023 the Judge granted the Respondents permission to cross appeal out of time “in respect of grounds 1 and 2 as set out in their application dated 1 September 2023”. The application of 1^st September 2023 was not in the appeal bundle, and I was not shown a copy of this application. This left me somewhat in the dark as to the grounds on which the Respondents had been granted permission to cross appeal. I assume however, and this appeared to be Mr Hale’s position in his oral submissions, that the Judge granted permission for a cross appeal which encompassed the arguments set out in the second half of the Respondent’s Notice and Cross Appeal. For his part, Mr Wilmshurst did not actively pursue an argument that no permission existed for the Cross Appeal, as it is explained in the second half of the Respondent’s Notice and Cross Appeal and as it was further elaborated in the Respondents’ skeleton argument for the hearing before me and in Mr Hale’s oral submissions.

In these rather unusual circumstances I have concluded that I should proceed on the basis that permission to appeal has been granted for what I have identified as the Cross Appeal. I do not think that I can or should refuse to entertain the Cross Appeal on the basis that no permission has been granted for the Cross Appeal, in circumstances where I am aware that permission to appeal was granted for a cross appeal and I have not seen any evidence on the basis of which I could safely conclude that the permission to appeal was not granted for the Cross Appeal. The obvious inference is that permission to appeal was granted for the Cross Appeal.

This clears the way for my analysis of the Appeal and the Cross Appeal. It seems to me that, logically, I should take the Cross Appeal first. If the Judge was wrong to find that the Sign could be read by anyone going up the Staircase, and should have found that the Wording was in fact illegible to anyone going up the Staircase, it seems to me that questions of the effect of the Wording become irrelevant and the Appeal falls away. If no one could read the Sign, what it said was irrelevant. Equally, if the Judge was wrong to find that Sign could be read by anyone going up the Staircase and if, as the Respondents now contend (as their alternative case) in the Cross Appeal, the question of the legibility of the Sign should be remitted to the FTT for further consideration, this has implications for the Appeal. This is because the Appeal is, on this hypothesis, potentially academic. If the question of legibility is remitted to the FTT, and decided in favour of the Respondents by the FTT, the position, subject to any appeal against that remitted determination, reverts to what it would have been if I had been asked to decide, on the Cross Appeal, and had decided, on the Cross Appeal, that the Judge should have found that the Wording was in fact illegible to anyone going up the Staircase. On this hypothesis, the effect of the Wording becomes irrelevant and the Appeal falls away. One is back in the position where, because no one could read the Sign, what it said was irrelevant. In overall terms, it seems to me that it plainly makes sense to consider the Cross Appeal first.

I should also mention that the Respondents attached to their skeleton argument for the hearing of the Appeal and the Cross Appeal four witness statements. These witness statements comprised a witness statement made by each of the Respondents and witness statements from two other individuals. These witness statements were all recent witness statements, dated in May 2024. As such, they constituted new evidence, which was not before the Judge at the Hearing. Mr Wilmshurst objected to this new evidence being adduced by the Respondents, on the basis that the Respondents should not be permitted to introduce new evidence into the hearing of the Appeal and the Cross Appeal. In the event, and sensibly, Mr Hale did not pursue an application for permission to introduce the witness statements at the hearing of the Appeal and the Cross Appeal. If this application had been pursued, I should make it clear that I would not have allowed the application. There was no evidence that any of the criteria for introducing new evidence on an appeal were met in relation to this evidence.

In the event the only relevance of the new evidence is that it did include two photographs of the Staircase which had been before the Judge, and a further photograph of the Staircase, taken from a lateral position, which was not before the Judge. So far as the photographs were concerned, there was no difficulty in considering the first two photographs as they were before the FTT. On that basis I did look at the two photographs. So far as the third photograph was concerned, it did not seem to me to take matters further, one way or the other, in relation to the Cross Appeal or, for that matter, the Appeal. In those circumstances I came to the conclusion, notwithstanding Mr Wilmshurst’s objections and notwithstanding that I would not have been prepared to permit the new witness statements to be brought into the Appeal, that there was no harm in my considering the third photograph. I need say no more about the remainder of the new evidence which, as I have said, Mr Hale did not ultimately seek to introduce.

There is one final point I should make, preliminary to my analysis of the Cross Appeal. In their arguments in support of the Cross Appeal the Respondents have referred to the question in issue as one relating to the legibility of the Sign and also as one relating to the visibility of the Sign. It seems to me that legibility and visibility are not necessarily the same thing. Visibility may be said to relate to the question of whether the Sign could be seen by a user of the Staircase, without necessarily answering the question of whether the Wording could actually be read by a user of the Staircase. Legibility may be said to relate to the question of whether the Wording could be read by a user of the Staircase. In the present case however I understand the Respondents’ references to legibility and visibility to refer to the same thing; namely the question of whether a user of the Staircase would have been able to see and read the Wording, as it appeared on the Sign. In my analysis of the Cross Appeal I will refer to the question as one of legibility of the Sign; which means the question of whether a user of the Staircase would have been able to see and read the Sign or, putting the matter with strict accuracy, the question of whether a user of the Staircase would have been able to see the Sign and read the Wording.