The Upper Tribunal (UT) has upheld a homeowner's appeal against a decision that he had not acquired a right of way over part of a driveway belonging to one of his neighbours.

The row of houses in which the man and his neighbour lived had originally been completed in 1999 and were on a private road. The occupants had erected a fence to prevent vehicles using the road as a shortcut, although there was a gap wide enough to allow pedestrians to pass through. They also put up signs stating that there was no public right of way. These signs were repeatedly removed and after 2005, the occupants gave up replacing them.

In 2020, the neighbour blocked the gap in the fence. The homeowner, who had bought his house from the original owner in 2015, responded by applying to register a right of way on the grounds that he and the previous owner of his house had crossed his neighbour's driveway on foot since 1999. The neighbour objected to the application and the dispute was referred to the First-tier Tribunal (FTT).

The FTT noted that, the gap in the fence having been blocked more than 20 years after the houses had originally been sold to occupants, there was sufficient time for a prescriptive right of way to have been acquired. The FTT considered that a claim under the Prescription Act 1832, under which it is necessary to show 20 years' use up to the date of commencement of proceedings, could not be made because the gap in the fence had been blocked by that point.

Also rejecting a claim on the basis of 'lost modern grant', which requires 20 years' use at any time, the FTT accepted that the signs indicating there was no public right of way had been erected in 2000 and remained for roughly five years, and that the neighbour's late husband had remonstrated with the homeowner at least once about his use of the route. His use had thus not been as of right, and no right of way had been acquired.

Ruling on the homeowner's appeal, the UT found that the FTT had been wrong to exclude a claim under the Act, as the gap in the fence had been blocked less than a year before proceedings were brought, which was not long enough to lead to an interruption of use under the Act. The UT also found that the protest made to the homeowner by the neighbour's late husband had taken place after 20 years' use had occurred and was therefore not relevant to the acquisition of a right of way.

The UT found that it would have been, at best, unclear to owners of the houses whether the signs stating that there was no public right of way were aimed at them. The fact that there was a gap in the fence suggested that the occupants were happy for at least some pedestrians to use the road. As such, the signs did not make the homeowner's use of the route contentious so that it was not as of right. The UT upheld the appeal and directed the Chief Land Registrar to register the homeowner's right of way.