Sign Prevents Acquisition of Right of Way

The Upper Tribunal (UT) recently ruled on an appeal against a decision of the First-tier Tribunal (FTT) that a sign saying there was no public right of way over a staircase did not prevent a private right of way being acquired over it.

The staircase had led from the street level to a raised walkway in front of a terrace consisting of nine properties. It was on land in front of Number 4, and thus made access to houses in the middle of the terrace easier. After Number 4 was sold in 2020, the new owners demolished the staircase. The owners of Number 6 subsequently applied to the Land Registry for registration of a right of way over the area where the staircase had been. As the owners of Number 4 objected to the application, the Land Registry referred it to the FTT.

The FTT found that the staircase had been used for the benefit of Number 6 for at least 20 years. A sign near the top of the staircase, measuring 20 cm by 6 cm, stated that it was private property and that there was no public right of way. The FTT concluded that the sign was visible to users of the staircase. However, the use of the word 'public' meant that it did not prevent the acquisition of a private right of way. The FTT ordered the Chief Land Registrar to give effect to the application.

The owners of Number 4 appealed to the UT on the grounds that the FTT had wrongly interpreted the wording of the sign. The owners of Number 6 cross-appealed, arguing that the sign was not in fact visible to users of the staircase.

Addressing the cross-appeal, the UT found that it would have reached the same conclusion as the FTT that the sign could have been read by anyone going up the staircase. In any case, it had not heard the arguments in full as the FTT had and did not consider that it was entitled to interfere with that finding. The FTT had taken into account evidence by the owners of Number 6 that they did not recall ever seeing the sign, and the weight to be placed on that evidence was a matter for the FTT. The cross-appeal was dismissed.

Having so concluded, the UT went on to consider the FTT's interpretation of the wording of the sign. Noting that the sign stated that the staircase was private property, the UT concluded that a reasonable user of the staircase would have understood that they had no right to use it as a shortcut to the walkway. The appeal by the owners of Number 4 was therefore upheld.