[2024] UKUT 00153 (LC)

I have no hesitation in concluding, on the basis of the evidence before me, that the Staircase was used for the benefit of the owners and occupiers of No 6 for a period of 20 years and more from no later than 2 December 1996. The user was as of right: for the reasons set out above it is not incumbent on the Applicants to prove that the relevant owners of No 4 had actual knowledge of the user. In my judgment, it would have been plainly obvious to the owner of the land, taking reasonable care, that it was being exercised.

Nor is it necessary, as also explained above, for the Applicants to prove that No 6 was not tenanted at the outset of the relevant period.

Mr Taylor submits that the owner of No 4 would not have known, or would not have necessarily known, that the Applicants and others visiting No 6 were in fact going to that property and not to another. Again, this seems to me to misunderstand the nature of the right of way claimed. It may be that other people on the terrace also had right of way: that does not affect the fact that the Applicants were exercising a right which would have been obvious to any reasonable owner.

The user was not occasional: it was consistent, and constant, both during the week and at weekends. The user was both by the Applicants and by people visiting the offices of French & Co: I accept entirely the evidence given by the Applicants on this point.

The fact that the Applicants were tenants of No 5, and later of part of No 4, is not relevant to the issue I have to determine. The right claimed arises in respect of the ownership of No 6 alone. In any event, I fully accept that the user of No 4 was limited to two rooms and on no occasion involved the use of the front door of No 4.

It was not argued that the right of way claimed falls foul of section 29 of the Land Registration Act. Again, this seems to be right. On the facts of this case, the Respondents were clearly aware of the use made of the Staircase by the owners of the various houses on the terrace at the time of purchase. The right would have been obvious to a reasonable purchaser. The Staircase clearly made access to some of the properties (including No 6) easier. The correspondence with the Council on this point fortifies my conclusions on this.”

So far as the Sign is concerned, my conclusions are as follows. Although small, and although placed at a considerable height from the ground, the Sign in my judgment could be read by anyone going up the Staircase. However, the Sign does not prevent the acquisition of a private right of way. It unequivocally states ‘no public right of way’. The position would be entirely different if the Sign had said ‘No right of way’. But by limiting the prohibition to public use, it does not, in my judgement, affect the acquisition of a private right. The Sign is defining the type of right that it being prevented. The Staircase was not to be used by the public as an extension of the road. Stating that the property was private does not affect the outcome: rights of way are typically acquired over someone else’s private land.”

In my judgment [this acceptance by Mr Taylor] is correct. The owner of the servient tenement cannot act in such a way as to render the easement incapable of being enjoyed, albeit that it is not incumbent on him to carry out repairs. It may then be that neither party is liable, if, at some point, the Staircase falls down or otherwise becomes so obviously unsafe that the right of way cannot be exercised.

But this is not the case here. The Staircase was removed over a weekend, without informing the Applicants or giving them any opportunity to consider whether or not the Staircase was in fact so defective that it was beyond any prospect of repair.”