[2025] UKUT 204 (LC)

In its Statement of Case in response to the Appeal, the Respondent included the following closing paragraph, following its response to the Appellant’s grounds of appeal:

“33.

In the alternative, if the decision of the FTT on the narrow ouster principle point is to be disturbed on review then the Respondent contends that the Applicant should still fail in his claim for all the reasons contended for by the Respondent. The Respondent did not challenge the decision made by the FTT because it is decisions which are attacked not reasons. Nevertheless, the Respondent takes the position that the decision should be upheld for reasons argued before the FTT.”

This paragraph appeared to be an attempt to challenge those parts of the Decision in which the FTT rejected the Respondent’s arguments. It is a feature of the Decision that the Appellant succeeded in establishing all of the elements required for the Disputed Easement to take effect as an easement by prescription, with the critical exception of the Ouster Question. The Respondent thus failed on the majority of the issues before the FTT.

So far as I am aware, paragraph 33 of the Respondent’s Statement of Case was not particularised any further, prior to the hearing of the Appeal.

At the hearing of the Appeal Mr Ball did seek to raise a challenge to one other part of the Decision. The challenge related to the findings of the FTT at Paragraph 24, which were in the following terms:

“24.

Mr. Ward submitted that on the evidence Mr. Stenner had failed to establish 20 years’ continuous user in respect of the Boat Storage Area. His use has been in common with other local boat users, such as fisherman, who had no nearby premises, and boats were stored on a first come-first served basis in both the Area and the adjoining hard standing. I do not consider this to be in itself a sufficient objection. An easement can be obtained by prescription over a shared road or path, and I am satisfied that Mr. Stenner has used the Boat Storage Area for storage of up to six boats since 1982 during the period October to May, albeit that there have been times when the boats of others were stored in the Boat Storage Area, though less frequently as the other boat hire businesses closed.”

Mr Ball contended that there was an inconsistency here. So far as the required period of 20 years continuous use of the Triangle was concerned, the FTT had proceeded on the basis that the Appellant had proved the required period of continuous use of the Triangle for the storage of up to six boats during the Relevant Period in each year. Although the FTT had proceeded on this basis, Mr Ball submitted that what the FTT had actually found, in Paragraph 24, was that the Appellant had used the Triangle in common with other users since 1982, for the storage of up to six boats. This was a finding that the use of the Triangle had been, at least sometimes, use in common with other users and, as such and during those times of common use, could not have involved the storage of as many as six boats by the Appellant. As such, and if the Appeal was successful on the ouster issue, the FTT’s findings did not support the conclusion that the Appellant had established a right of storage by prescription as extensive as the Disputed Easement.

Given the failure of the Appellant’s grounds of appeal, the Respondent’s challenge does not require a decision. I should however make clear what my decision would have been, if the Respondent’s challenge had arisen for decision.

In the first place, I would not have been willing to entertain this challenge. So far as I am aware, this particular ground of challenge had not been notified, let alone particularised to the Appellant, prior to the hearing of the Appeal. In these circumstances the Appellant and his legal team would have had no opportunity to prepare to meet this challenge. In these circumstances I would have regarded it as unfair to the Appellant to allow this ground of challenge to be raised for the first time at the hearing of the Appeal, and I would have refused to entertain the challenge. Nor would I have been willing to adjourn the hearing of the Appeal, either in whole or in part, in order to allow time for the Appellant to prepare his response to this ground of challenge. Not only would such an adjournment have been unfair to the Appellant, but it would also have engaged further delay and further costs in a case where, given the relatively small area of land involved, the costs should be kept under strict control.

Second, I do not think that the ground of challenge has merit in any event. As I read Paragraph 24, the FTT was satisfied that the Appellant had proved 20 years of continuous use of the Triangle, for the storage of up to six boats, during the Relevant Period in each year. I do not think that the references to common use in Paragraph 24 undermine or qualify this finding. Equally, it is clear from reading the Decision as a whole that the FTT was satisfied that the continuous user which had been proved was sufficient to support the extent of the rights claimed by the Disputed Easement. If therefore I had been willing to entertain the Respondent’s challenge to the findings of the FTT concerning the required period of user of the Triangle, I would have dismissed that challenge.