Appellant succeeds in establishing right of way

A sign to would-be peaceable users that a landowner objects to the use of their land must be examined in its context. The Upper Tribunal (Lands Chamber) has considered this issue in Sagier v Kaur [2024] UKUT 217 (LC); [2024] PLSCS 141. Barratt Homes completed a housing development adjoining Victoria Park in Smethwick in 1999. It included homes on a private road which was the succession of driveways over which neighbours had to walk or drive to get from their homes to the public highway. The parties each owned a property in the private road. To prevent vehicles passing from one end of the road to the other Barratt erected a timber barrier from the front wall of the defendant’s property to the park railings. The barrier was lower than knee height, pedestrians could step over it and regularly made use of it to access facilities to the east of the park. Between 2000 and 2005 some residents put up signs on the park railings stating “no public right of way” but they were frequently removed. In 2000/01 a low waist-height metal fence replaced the low timber barrier up to six feet from the railings so access remained for pedestrians over the original timber barrier. In September 2020 the defendant and her husband blocked the gap between the metal fence and the railings and later they replaced all fencing with a much higher metal fence impossible to jump or climb over. The claimant sought to register a right of way acquired by long use, in December 2020. While satisfied that the claimant had established sufficient long use the FTT rejected a claim under the Prescription Act 1832 because use ceased in September 2020 prior to issue of the claim. An oral protest by the defendant’s husband in September 2020 and the signs meant that any use of the defendant’s drive was “with force”. The claim failed. Allowing the claimant’s appeal, the Tribunal decided that the judge was wrong to dismiss the claim under the 1832 Act. Section 4 provides that there is no interruption of use as of right unless it is submitted to or acquiesced in for a year. The single protest occurred after satisfaction of the 20-year period and the reasonable user would have assumed that neither Barrett nor those installing the metal fence in 2000/01 were intending to prevent all pedestrian access. The signs were targeted at members of the “public” not householders and neighbours living on a private road, a door or two away. The signs were ambiguous and insufficient to render use contentious. Louise Clark is a property law consultant and mediator