[2025] UKUT 204 (LC)

Ground 1(c) is that the FTT failed to take into account other uses which the Respondent could make of the Triangle, such as drainage, running utilities under or over the Triangle, providing lighting, providing seating for visitors and so on.

I have effectively dealt with Ground 1(c), already, in my analysis of Grounds 1(a) and 1(b). I should however stress the findings of fact made by the FTT in this respect. The Judge found, at Paragraph 60, that during the Relevant Period the storage of six boats on the Triangle would give the Appellant exclusive use of the Triangle during the Relevant Period.

In Paragraph 61 the FTT considered other uses of the Triangle, such as painting and re-surfacing work, and found that such activities would not be possible during the Relevant Period. As I have already recorded, I understood Mr Petts to accept that this finding was correct, so far as the Relevant Period was concerned.

In Paragraph 62 the FTT considering the possibility of the Respondent granting a licence for gigs (which I understand to be rowing boats) during the Relevant Period, but found that this would not be possible during the Relevant Period.

In Paragraph 65 the FTT considered the possibility of pedestrian use during the Relevant Period. The FTT did not consider this use to be material, for the reasons given in Paragraph 65. I have already concluded, in my analysis of Ground 1(b), that the FTT did not consider pedestrian use on the wrong basis in Paragraph 65. The FTT also considered the possibility of putting up fencing within the Triangle, but also found that this would not be possible during the Relevant Period.

In Paragraph 66 the FTT made the specific finding that no parking of cars could take place on the Triangle during the Relevant Period, although this is also part and parcel of the findings in Paragraph 60.

The grounds of appeal seek to add other uses to the list of possible uses of the Triangle, such as lighting, seating or the provision of utilities. It was not clear to me what lighting or seating was being referred to, or whether such possible uses were actually raised before the FTT. If they were, I cannot see how they would have been feasible uses of the Triangle during the Relevant Period, given the findings made by the FTT. So far as utilities were concerned, I was not shown any evidence that utilities did run under or across the Triangle, and there is no reference to this in the Decision. If the reference to utilities was intended to be a reference to work on the Triangle to run utilities through the Triangle, it is clear from the findings of the FTT that this would not be feasible during the Relevant Period.

As I have said, it is not open to me to interfere with the findings made by the FTT as to possible alternative uses of the Relevant Period. The FTT heard all the evidence in the case. I have not. As I have also already said, and independent of my inability to interfere with these findings, it seems to me that these findings were plainly correct.

In these circumstances I cannot see that the FTT placed too much emphasis on the Respondent’s use of the Triangle for public parking. This criticism also seems to me to miss the essential point in this context, which is that, on the findings made by the FTT, the Disputed Easement would have left the Respondent with no other reasonable use of the Triangle during the Relevant Period, independent of the Triangle’s identity as part of the Car Park.

I conclude that there was no failure on the part of the FTT to take into account other uses which the Respondent could make of the Triangle during the Relevant Period. I can see no basis for saying that the FTT made a significant, or any error in this respect or was wrong, let alone plainly wrong.