[2024] UKUT 00153 (LC)

An understanding of the topography of Number 4 and Number 6, and the immediately surrounding areas is essential to understanding the issues which have to be resolved in the Appeal and, subject to the question of its status, the Cross Appeal. For this reason I need to spend some time explaining the topography. My knowledge of the topography comes from the Judge’s helpful description in the Decision itself and from the evidence which was before the Judge. This evidence principally comprised plans, photographs and a virtual tour of the relevant areas filmed, with a commentary, by the Appellants.

Derby Terrace comprises a terrace of properties which were originally built in the 1830s. The terrace (“the Terrace”) is Grade II listed. Each property in the Terrace is three storeys high, with a basement and attic. The construction of the properties (“the Properties”) is such that their grounds floors are at an elevated level, in relation to the public highway, Derby Road, which runs adjacent to the Terrace. As a result, the basement of each Property is on the same level as Derby Road, while the front door of each Property (on the ground floor) is at an elevated level. The Terrace stands on what is roughly an east-west axis.

I believe that the Properties are, or at least were originally numbered 1-9. In any event Number 4 and Number 6 retain their original numbering. I will use the same numbering to refer, individually, to the remainder of the Properties. Number 1 therefore refers to the Property which is located at the western end of the Terrace, and so on to Number 9, which refers to the Property located at the eastern end of the Terrace.

Access to the Properties, at ground floor level, is obtained by means of a raised walkway which runs along the front of the Properties (“the Walkway”). As matters now stand, access to the Walkway is obtained at the eastern end of the Terrace. One passes in front of a building called “the park Octagon” and proceeds on to the Walkway itself. I understand, from the evidence which I have seen, that the Walkway runs only as far as Number 2. I understand from this evidence that the Walkway does not extend to the frontage of Number 1, at the western end of the Terrace.

Certain of the Properties have been built out, at their front basement level, so as to extend to the edge of the pavement of Derby Road (“the Pavement”). I understand, from the evidence which I have seen, that this is the case in respect of Number 9, Number 3 and Number 2. Where the Walkway passes in front of these Properties it is considerably wider, occupying what I assume to be the roof of the extended front basement areas of these Properties. Where the Walkway passes Numbers 8, 7, 6, 5 and 4 (proceeding along the Walkway from east to west) it is narrower. There is a gap between the edge of the Walkway and the front elevation of each of the Properties, with the exception of Number 1 to which the Walkway does not extend. Access across this gap to the front door of each of these Properties is obtained by a spur (or bridge) from the main part of the Walkway to the relevant front door. It follows that where the Properties have been built out at their front basement level, so as to extend to the edge of the Pavement, there is a gap between the built out area and the main part of the basement of each Property. The Pavement itself is part of the public highway on Derby Road.

A photograph of the Terrace dating from 1900 discloses that each of the Properties was then built out at front basement level, so that each Property, at basement level, extended to the Pavement. Above these extended basements was a railed off area, running the length of the Terrace, which the Judge described as a carriageway; see Paragraphs 9 and 10. At some point however these extended basement areas were demolished and were either replaced by new extended basement areas or were left as open areas. What had been the carriageway was replaced by the Walkway which, as I have explained above, does not run along the entire length of the Terrace and is fairly narrow where it passes in front of Numbers 8, 7, 6, 5 and 4.

The consequence of this is that, in the case of Numbers 5-8, there is an open paved area of what might be described as forecourt between the Pavement and the actual basement of these Properties. In the case of Number 6 this area of forecourt, title to which is unregistered, runs back from the Pavement under the Walkway. Adjacent to the edge of Walkway, on the side of the Walkway nearest to the front elevation of Number 6, there is a barrier comprised partly of a brick wall and partly of railings. A gate in the railings gives access to the open area, at basement level, between the Walkway and the actual basement of Number 6. I believe that there is a similar arrangement at basement level in the case of Numbers 5, 7 and 8.

In relation to Number 4 the position is now different. I will explain the previous position, in relation to Number 4. in the next section of this decision. As matters stand what was the forecourt area of Number 4, that is to say the area between the Pavement and a line drawn somewhere beneath the Walkway, where the Walkway passes Number 4, has been enclosed and converted into a front garden, comprising paved areas and plant beds. The enclosure has been achieved by erecting a brick wall at the front of this area, separating this area from the Pavement, with a door in the wall giving access on to the Pavement, and by erecting a brick wall on the eastern side of this area, separating this area from the forecourt area of Number 5. On the western side enclosure is achieved by the pre-existing external brick wall of the basement structure at the front of Number 3. I will refer to this pre-existing external brick wall, which encloses the garden on its western side and predates the creation of the garden, as “the Wall”.

The freehold title to Number 4 is registered under title number NT435727. The registered proprietors are the Appellants. The area of the enclosed garden is shown coloured blue on the registered title plan. In common with the Judge I will refer to this area of what is now an enclosed front garden as “the Blue Land”.

The Walkway is owned by a company called Nottingham Park Estate Limited (“the Company”). I understand that the Walkway is owned as a flying freehold, which I assume reflects the fact that the airspace and structures below the Walkway are not within the Company’s title. I was told that the Company owns a substantial estate of land in Nottingham. I was also shown a plan which shows the Walkway and other roads in the vicinity which are in the Company’s ownership.

I am attaching a plan to this decision, as an Appendix, which shows the position of the Terrace and the locations of Number 4 and Number 6.