[2024] UKUT 217 (LC)

In 1999 Barratt Homes completed a new housing development adjoining Victoria Park in Smethwick. It included new homes on two existing public roads, Pool Road and Victoria Park Road, which run parallel to one another and terminate at the railings which surround the Park. The development also included nine new houses situated on a new private road immediately adjacent to the Park and connecting Pool Road and Victoria Park Road. Although the new private road linked two existing public highways it has never been adopted and remains private land with each successive strip owned together with the adjoining house.

The general layout is shown below, with Pool Road on the left.

Viewed from Victoria Park the new houses along the private road are numbered, from the left, Nos. 37, 39, 41 and 43 Pool Road followed by Nos. 60, 61, 62, 63 and 64 Victoria Park Road. With one exception the houses are all semi-detached, and No. 43 Pool Road and No. 60 Victoria Park Road form a pair. It is convenient to refer to each property simply by its number and to semi-detached pairs by both their numbers.

Mr Sagier owns No. 39. Three doors along, Mrs Kaur owns No. 60. Mrs Kaur and her late husband, Mr Mohan Singh, bought No. 60 in March 1999 and she has lived there ever since. The first owner of No. 39 was a Mrs Hewitt, who purchased it in July 1999 and later sold it to Mr Sagier in August 2015.

Each of the houses on the private road has a small, paved area and its own tarmac driveway immediately to the front and to the side of the building. The road itself is simply the succession of driveways over which neighbours have to walk or drive to get from their own houses to the public highway at one end or the other. There is no designated footway but a narrow strip of land adjoining the Park railings is not paved or tarmacked.

When the houses along the private road were first occupied in 1999 the new owners complained to Barratt that there was nothing to stop vehicles using it as a convenient cut-through to get from Pool Road to Victoria Park Road. To prevent access Barratt erected a timber barrier, lower than knee height, stretching from the front wall of Nos. 43/60 all the way to the Park railings. This barrier was sufficient to prevent vehicles passing from one end of the private road to the other, but still low enough to enable any able bodied pedestrian to step over it and continue on their way without difficulty. Nor did it present any serious obstacle to cyclist or parents pushing prams or pushchairs as these could easily be picked up and lifted over the barrier.

After 1999, when the development was completed, pedestrians made very regular use of the private road. There is a school, a community centre, a doctor’s surgery and some shops on the eastern side of the Park, as well as gates into the Park at the end of Victoria Park Road. The most convenient route for many pedestrians wishing to get to those facilities from Pool Road was to walk along the private road, stepping over the timber barrier on their way. The alternative was a short diversion through the Park or a long diversion of perhaps 600 metres back along Pool Road; so the route over the private road was popular with children and others going regularly backwards and forwards in both directions. It was also used, in both directions, by those who lived on the private road.

Barratt’s original timber barrier was not very obvious to drivers who didn’t know it was there and who would come some distance along the private road before they realised that it was blocked. They would then have to turn round in quite a confined space or reverse back in the direction they had come from. Nor did the barrier limit where pedestrians could walk as they passed directly in front of the houses, which were not separated from the road by any garden or fence. That wasn’t very satisfactory for the owners of the houses, who soon found their own solution to both of these issues.

The first self-help measure taken to reduce the inconvenience and nuisance experienced by the owners of the houses was to put up some signs. In January 2000 Mr Sidhu, who lives at one end of the private road at No.63, talked to his neighbours at that end of the road and as far along as No. 43 (Mr Jackson) and they agreed to put up two signs, each stating “No public right of way”. One sign was put up on the Park railings opposite Mr Sidhu’s house, so as to be visible to drivers before they turned into the private road at that end, and another on the Park railings adjacent to the timber barrier. Mr Sidhu discovered that these signs were repeatedly removed and had to be replaced from time to time until about 2005, by which time he had had enough and gave up replacing them.

Later in 2000 or 2001 a second self-help measure was taken by some of the owners at the Victoria Park Road end who replaced the low timber barrier with a low metal fence, about waist high, in the same position. The new fence had railings topped by decorative finials and was high enough to prevent anyone from comfortably stepping over it. But the owners who arranged for the new fence also appear to have decided that it should not block the whole width of the private road. Instead of running from the wall of Nos. 43/60 all the way to the Park railings, the new fence stopped short of the railings by about two metres or six feet. In that gap the owners left a stretch of Barratt’s original low timber barrier spanning the grassy space between the end of the new fence and the Park railings. The result was that pedestrians could continue to step over the timber barrier when going from one end of the private road to the other.

On 27 September 2020 Mrs Kaur and her late husband put up a higher wooden barrier or fence blocking the gap between the metal fence and the Park railings and making it impossible for pedestrians to pass from one end of the road to the other. This short stretch of wooden fencing is referred to in the FTT’s decision as a “picket fence”. Later, in 2021, Mrs Kaur and her late husband took away the picket fence and the original metal fence, which had stood for twenty years, and replaced them with a much higher metal fence which is impossible to jump or climb over.

Unfortunately, but entirely predictably, the separation of the Victoria Park Road end of the private road from the Pool Road end by the erection of increasingly formidable barriers has caused conflict between neighbours.