Peter Salter v Angela Harvey & Ors

1. The matters that have been referred to the Tribunal are the three objections to the Applicant’s application to register the benefit and note the burden of a right of way on foot, an easement he avers has been acquired by long use.

2. The Applicant is the registered proprietor of Short Wood, registered under title number SYK331877 (“Short Wood”; outlined red below left). The Respondents are the registered proprietors of a stretch of land bordering Short Wood to the southeast, registered under title number SYK610725 (“the Respondents’ Land”; outlined red below right). Figure 1 Short Wood Figure 2 Respondents' Land

3. To the south of the Respondents’ Land, there is a path (“the Path”). On the other side of the Path is a row of houses known as Shortwood Villas, with Number 1 being the furthest north (that is, adjacent to the Path). The Path is a continuation of Shortwood Way. It is used as a shortcut to Birdwell.

4. The Applicant claims a right of way on foot over a strip of land tinted blue on the plan extract below, averring that it has been used as an access from the Path into Short Wood (“the Strip”). I will refer to the triangular section at the western end of the Respondents’ Land, over which the Strip runs, as the Triangle. Figure 3 The Strip Summary

5. Previously, a colliery railway (the Wharncliffe branch line) ran through the Respondents’ Land (“the Track”). During the hearing, I was provided with a plan to neighbouring property SYK145231, which is based on an older OS map, to show where the Track was located (extract below). This shows tracks either side of Shortwood Villas (although this matter is only concerned with the one running to the west); a level crossing allowing access across the Track along the Path; and a footbridge leading into Short Wood, which is approximately where the Strip is now (“the Footbridge”). I was also provided with photographs from Historic England consistent with this layout. It is accepted that the Track was decommissioned in or around 1962. Figure 4 Historic OS Map

6. I visited the site the afternoon before the first day of the hearing. The Triangle now has the appearance of a wooded area and is overgrown. Near to the Path, the Strip is reasonably level, but at the other end it slopes down to Short Wood. This part of the Strip is steep, but it is possible to pass on foot without too much difficulty.

7. Short Wood was owned by Job Earnshaw & Bros Limited (“the Company”) from 1955, and then sold to the Applicant in 1993. The Respondents’ Land was part of the railways until it was sold off to the Second Respondent and his father Alf (who I will refer to simply as Alf for ease) in or around 1974, and has stayed in the Respondents’ family since (it was transferred to the Second Respondent in 1983, and then into the names of all three Respondents in 2013). The Respondents’ family in fact had a presence in the area themselves from around 1955, as is further explained below.

8. In general terms, the Applicant’s case is that the Strip has been used as an access point into Short Wood since at least 1955. He says it was historically used by the Company as an access point to remove harvested timber using large vehicles, and by a shooting syndicate, as well as people, including himself and his family, using it to access Short Wood for recreation.

9. Again in general terms, the Respondents deny that the Strip has been used as an access point. They submit that any access was in fact beyond the tip of the Triangle, not crossing the Respondents’ Land. The Second Respondent says that he and his father erected fencing on purchasing the Respondents’ Land in 1974, or at least ensured that it was fenced, meaning that the Triangle was not accessible from the Path or Short Wood from at least that time. The Respondents aver that this remained the case until 2006/7, when their fencing began to be damaged, before a driveway was constructed in 2008 (“the Driveway”, further described below). Since then, they say, they have tried to keep the Triangle fenced, but have had difficulties doing so as the fencing is continually damaged and/or removed.

10. This is largely a factual dispute as to use of the alleged right of way. I briefly outline the relevant legal points below: (a) the Applicant must demonstrate, on the balance of probabilities, that the right has been used continuously, and without force, secrecy or permission, for a period of 20 years. He can rely on any period of 20 years under the doctrine of lost modern grant; (b) in relation to the requirement for continuous use, the question is whether the use brings home to the owner of the burdened land that the right is being asserted; (c) if the Applicant can show continuous use for the requisite period, he can rely on an evidential presumption that the use was without force or permission, and the burden is on the Respondents to show that the use was with force or permission; (d) there is potentially an issue as to use with force depending on my findings as to fencing and signage; (e) if I am satisfied that there is an easement, it will be necessary to consider whether it overrides the registered disposition of the Respondents’ Land in 2013. The Respondents take no particular point in this regard, and it is likely that Applicant will come within either Schedule 3 paragraph 3 or Schedule 12 paragraph 9 if I accept his evidence of use.

11. The Respondents have represented themselves throughout these proceedings, primarily through the Second Respondent. Seemingly at every step, the Second Respondent has prepared lengthy written documents, many of which mix procedural points, facts and submissions, and many of which repeat themselves and/or repeat the contents of earlier documents. Ultimately, however, these boiled down to a few central points, which I address where appropriate below. The evidence

12. I heard evidence from a number of witnesses on both sides, and was also asked to consider written evidence from several more. The evidence covers a huge period of time, almost 70 years, and relates to an area of land which has undergone changes in character, particularly given the earlier existence of the Track and the later existence of the Driveway. It has been something of a jigsaw puzzle, putting together the evidence to ascertain what was happening on the land and when.

13. I set out the following timeline by way of an overview: (a) 1955-1974: the Company purchases Short Wood; the Respondents’ Land is owned by the railways (b) 1974: Alf & the Second Respondent purchase the Respondents’ Land; the Respondents aver that their land is fenced off and the Strip inaccessible (c) 1983: the Respondents’ Land is transferred into the Second Respondent’s sole name (d) 2006/7: issues arise with works going on at/the owner of Number 1 Shortwood Villas, Mr Steeples; the Respondents aver that this is when they have issues with their fencing being damaged/removed (e) 2008: the Driveway is installed (f) 2013: the Respondents’ Land is transferred into the names of the Respondents (g) 2021: the application

14. I note at the outset that, as is often the case, the evidence has focused on recent years, since the dispute arose. However, what has happened in recent years is not always determinative or even particularly helpful. I have considered all of the evidence in reaching my decision, even if it is not expressly referred to below.

15. It is convenient to first consider the photographs that have been provided, to better explain the lie of the land, and to identify some of the Respondents’ arguments based on physical features. I will then summarise the witness evidence, taking it in broadly chronological order, before making my findings of fact. Photographs

16. The Respondents provided a large number of photographs, including bringing to the hearing a bundle containing better quality versions of some of those that had previously been provided. I have reproduced below extracts from the electronic versions of those that I consider to be the most important, although in some cases better quality versions were available during the hearing. The earliest relevant photographs are from 2006/7. (a) The tip of the Triangle This is one of several photographs of the area around the tip of the Triangle. Part of the Respondents’ case is that Short Wood was accessed here, just beyond the tip of the Triangle, without crossing the Respondents’ Land. The red circle was added by the Respondents; I do not intend it to signify anything. Figure 5 Area around the tip of the Triangle (b) The position of the Strip relative to the Path and Numbers 1 & 2 Shortwood Villas The first photograph is of the Strip from Short Wood, showing the slope in the foreground and the more level part further away. The second photograph is a close-up of the rear of Numbers 1 & 2 Shortwood Villas. In both, the red arrows show the gate to Number 2, which is adjacent to the boundary post between the properties. I was unable to easily identify a date for either photograph, but it is certainly after 2007 given the appearance of the rear of Number 1 (fence panels rather than a low wall). The Respondents point to the steepness of the slope as being inconsistent with the alleged use of the Strip. Figure 6 Strip from Short Wood & close up of the rear of Numbers 1 & 2 Shortwood Villas (c) The position of the Driveway The photograph below, from 2010, shows the entrance to the Driveway. A further photograph, not available electronically, was taken slightly further forward and shows the rear gate to Number 2 Shortwood Villas positioned opposite the wooden post at the far the edge of gravelled area. The approximate position of the gate is indicated on this photograph by the red arrow. The blue arrow indicates a “V-shaped” tree (“the V-shaped Tree”). The Respondents point to the lack of track or trodden area across the grass as being inconsistent with the alleged use of the Strip. They also submit that the Applicant instructed the construction of the Driveway to hide the lack of path. Figure 7 Driveway entrance, 2010 (d) Looking down the Driveway into Short Wood This photograph is also from 2010. It is taken from the entrance to the Driveway, looking towards Short Wood. The blue arrow indicates the V-shaped Tree. The green arrow indicates a tree (“the Knobbly Tree”) which is just beyond the boundary with Short Wood. The orange arrow points to a bump in the ground, covered in leaves, which is in fact the top of part of the Footbridge structure (“the Footbridge Base”). The sloping part of the Strip runs to the left of the Footbridge Base. Figure 8 Looking down the Driveway, 2010 (e) Photographs from 2006-7 The following are a selection of photographs from 2006/7. Another feature of the land, in addition to those already highlighted, is a sizeable tree with lateral wire cuts located to the right of the entrance to the Driveway (“the Wire Tree”). Unfortunately, the photograph showing the Wire Tree most clearly is not available electronically. It is however visible on some of the photographs below, and is indicated by pink arrows (note: the red circle is an annotation by the Respondents; I do not intend it to signify anything). The Respondents submit that these photographs do not show a track, trodden area, or access point. Figure 9 2006/7 photographs taken facing away from Shortwood Way, Strip to the right Figure 10 2006/7 photographs towards Shortwood Way, Strip to the left (f) 2018 photograph into Short Wood This is a photograph from the Strip into Short Wood (the Respondents accept that the date is wrong; a version with the correct date of 12 th July 2018 was provided at the hearing). The green arrow indicates the Knobbly Tree. There is what looks like a well-trodden area to the right of the Knobbly Tree. There is a fence across the well-trodden area in the foreground. Part of the Respondents’ case is that weedkiller was used around the fenceposts and that is why they are clear of vegetation. Figure 11 Short Wood, 2018 Respondents’ family’s use of land in the area from 1955-1974

17. The Second Respondent’s sister, Mrs Vicki Kemp, gave evidence on behalf of the Respondents. She provides some useful historical background, none of which is in dispute. She was born in 1946, at which time Alf worked on the railways. In 1954, he worked in the signal box in front of Shortwood Villas, and got to know a man who ran a piggery on some land which they later called the bird sanctuary. He purchased this land in 1955, cleared away the piggery, and a year later built a hut. He kept bee hives until 1983, which Mrs Kemp helped him with. She said in cross-examination that she went there virtually every day.

18. Mrs Kemp describes this land as “ the small triangular piece of land in the middle of the larger piece, which my dad and brother later bought in 1974 ”. She also provided a hand-drawn map, which is reproduced below, and a selection of photographs from 1955-1974. Figure 12 Mrs Kemp's Plan

19. Taking all of this evidence together, it seems to me that the land she refers to as the bird sanctuary is the triangular area to the south of the Track between each end of the Respondents’ Land (“the Bird Sanctuary”), which I have circled yellow on the plan extract below. Figure 13 Bird Sanctuary

20. Save in a couple of respects, to which I will return later, Mrs Kemp’s evidence related to the Bird Sanctuary rather than the Triangle. None of her photographs are of the Triangle. There is no evidence of the Respondents’ family using the Triangle before the purchase of the Respondents’ Land in 1974. Company use, 1955-1993

21. In 1955, the Company purchased Short Wood. There is a statutory declaration from Christopher Earnshaw in which he avers that a way or track has been used by the Company from 1955 without consent, interruption or payment. However, I am not satisfied that this includes the Strip: the track is delineated on a plan which is of such a small scale as to be virtually useless; insofar as anything can be gleaned from the plan, it appears to skirt the edge of Short Wood along the Path; and the declaration describes the track as “ leading over Platts Common from the public highway B6096 (Hoyland to Wombwell) to Short Wood ”. It seems to me this relates to Shortwood Way and the Path, rather than the Strip. It is not relevant to these proceedings.

22. I pause to note the Second Respondent took great issue with the statutory declaration, in particular because: there were two versions of it in the bundle, only one of which had been countersigned by a solicitor; it is referenced on the Applicants’ registered title, but with an incorrect date (1933 rather than 1993); and the quality of the plan is poor. In various written documents, he suggested that this application was “ a scam 30 years in the making ” and went as far as to accuse HM Land Registry of corruption. I need not address these points in detail as I have already found the declaration does not relate to the Strip, but for the avoidance of doubt I do not accept that there is anything improper or untoward about the declaration, its preparation, or the reference to it on the Applicant’s title (which is plainly a typographical error).

23. The Second Respondent also took issue with the fact that the Applicant’s witness statement refers to Job Earnshaw working at Short Wood. According to a family tree provided by the Second Respondent, Job Earnshaw (the person, as opposed to Job Earnshaw & Bros Limited the Company) had died many years previously. The Second Respondent points to this as proof of the Applicant making things up, or at least a lack of credibility. I do not consider there is anything in this. I do not recall this particular point being put to the Applicant in cross-examination. In any event, I note that the Applicant’s first short statement (April 2021) refers to a friendship with Christopher Earnshaw, before his later statements refer to Job Earnshaw. The main thrust of his evidence is that the Company used the Strip, and I do not consider this is significantly undermined by the lack of consistency in the names used, especially given the potential for mixing up the name of the person and the name of the Company.

24. In addition, a number of the Applicant’s witnesses gave evidence that the Company used the Strip as an access point for removing timber. Mr William Scothorn, whose knowledge of the area relates to the period 1955-1974, remembers the Company removing timber. Mr George Scothorn, his brother, did not give oral evidence but his witness statement refers to a tripod-like structure used to lift the timber onto the timber transporting vehicle, which was driven out from the southern western edge of Short Wood. He also recalls the Footbridge, but says there was no need to use it as you could walk to the left of the Footbridge straight into the woodland where the Track and woodland were more level.

25. Mr David Peake, who has lived at Number 5 Shortwood Villas since 1982, gave the most detailed evidence in relation to this. He recalled the Company (with whom he was at that time regularly doing business) accessing Short Wood where the Footbridge had stood. In cross-examination, he said that the Company harvested timber once or twice a year, and would winch trees up the slope to its lorries. He remembered this happening a few weeks after he moved in.

26. I note for completeness that Mr Jan Pozorski, who lived at Number 1 Shortwood Villas from 1969-1985, and whose evidence is considered in more detail later, did not recall seeing the Company use the Strip, although he remembered seeing tree stumps in Short Wood on the odd occasions he visited, and noted in his written statement that any extraction would most likely have taken place during his working hours. In cross-examination, he said he had no recollection of seeing any tracks, but noted that any evidence of extraction would have been washed away or eroded.

27. The Respondents do not accept the Company used the Strip for removing timber. Neither they nor their witnesses saw this take place. I note in particular that Mrs Kemp commented on this in her statement, saying that she did go up towards the lane near Shortwood Villas (the Path), and that she never saw anyone moving trees or timber over the line (the Track) in the time she took her family down there between 1962 and 1976. Shooting, 1955-1993

28. The Applicant’s case is that, from 1955, pheasant shooting took place in Short Wood, with the shooting syndicate using the Strip as access; and moreover that, when the Respondents’ Land was purchased in 1974, Alf gave the syndicate permission to use the Strip as access.

29. Use by the syndicate does not itself support the right of way, as the evidence is that use from 1974 to 1983 was with Alf’s permission, and the Applicant cannot evidence a continuous 20-year period prior to that. However, it is potentially evidence of the Respondents’ Land being used as an access point to Short Wood, and/or goes to the credibility of the witnesses.

30. The Applicant gave evidence that he himself used the Strip as access from around 1955, with George Scothorn. He said all the shooting party used it. Two particular points were put to him. Firstly, that he did not access Short Wood over the Strip, but rather near the tip of the Triangle, with particular reference to an early witness statement in which he said he accessed Short Wood “ over the tip of land (approx. 4/5mtrs deep) ” – the Applicant accepted that the Strip is longer than that, more like 28m, and explained that his daughter typed up the statement and there must have been a misunderstanding. Secondly, that he could not have used it while the railway was running – he said it was just a small diesel locomotive that used the Track; even though the Track had not been decommissioned they still crossed there; he very rarely saw a train after World War II; and he never saw a train in all the time shooting.

31. Mr William Scothorn gave evidence in relation to the period 1955-1974. His evidence was that, as a 10 year old, he tagged along with the Applicant and his older brother George. He said there was shooting every fortnight during the season (20 th October – 30 th January), and that the beaters would access Short Wood across the Triangle – he denied that this was impossible because of the Track, and made reference to the gates at the railway crossing. He said he thought the Triangle was part of Short Wood and also belonged to the Company, until Alf made him aware of the purchase soon after Alf had bought it. He said Alf gave the syndicate permission to drive down and to walk and shoot, although he himself stopped shooting in 1974. When it was put to him that Alf purchased the Bird Sanctuary in 1955 and would not have given permission to shoot birds, Mr Scothorn maintained that permission was given, and clarified that they did not shoot on the Triangle but rather used it as access.

32. Mr George Scotthorn’s witness statement confirms he held the shooting rights and describes access into the woodland to the left of the Footbridge as set out above.

33. Mr Pozorski also gave evidence regarding the shooting. He said he heard the noise of shooting, and that he infrequently saw beaters using the Triangle, but also noted that they did not always use that access, depending on where they were driving to or from.

34. The Respondents do not accept that the syndicate used the Strip or that Alf gave permission. The Second Respondent argued that Alf would not have given permission as he was a bird lover. His only direct evidence as to permission, which came out in cross-examination, was that Alf told him he had told the shooters to keep off. Mrs Kemp’s written statement states that Alf was asked several times by men if they could shoot or beat on the land and “ it was always an absolute no because it was a bird sanctuary … One even asked me to ask dad and I repeated I could assure him dad would say no ”. Mr Pozorski’s evidence, 1969-1985

35. After the first two days of hearing, and before the matter returned for what was intended to be the final day, the Second Respondent sought permission to rely on the evidence of Mrs Kemp, together with an agreement she had found in her papers that related to the use of some the Respondents’ Land by Mr Pozorski. Permission was granted and the matter was adjourned.

36. The first page of the agreement provides that Mr Pozorski “ agrees to rent the premises, described below and verged in black on the plan attached, to use the land for a private garden ”, and that he “ shall maintain the fences where possible to keep children out of danger and to prevent the intrusion of animals ”. It is signed by both Alf and Mr Pozorski.

37. The second page states that the plots are in three parts, A, B & C, with part C being a temporary agreement to be renewed yearly. It also states the rent is £1.50 per year from 1.3.76. This page is signed by Alf and RA Hoyland, but not Mr Pozorski.

38. There is a plan, the pertinent part of which is reproduced below. Part A is (approximately) the Triangle. There is also a stub and a receipt referencing Pozorski, rent and £1.50 dated 1976 (although it is not clear why Alf retained both parts). Figure 14 Mr Pozorski Agreement Plan

39. Mrs Kemp’s statement describes it as an agreement “ for the small top piece of land ”, and that “ dad made it clear it was for a garden and veg patch… Dad only charged him £1.50 for the year because he looked on it as another pair of eyes to look out for trespassers ”. I note that on her plan (figure 5) she has marked an area described as “ smallholding ”, which equates to Part B and perhaps also Part C, but not Part A.

40. Upon the agreement being disclosed, the Applicant tracked down Mr Pozorski, who provided a witness statement and gave oral evidence on his behalf. Mr Pozorski’s evidence is in relation to the period 1969-1985, which is when he lived at Number 1 Shortwood Villas. He entered into an agreement with Alf to use part of the Respondents’ Land to grow vegetables. He remembers the first page of the agreement, but does not recall the second page, the plan, or paying any rent, save perhaps a vague recollection of paying the first time. He says that, in 1983, the Second Respondent confirmed verbally that the arrangement could continue.

41. His evidence is that he cultivated Part B as an allotment to grow vegetables between 1976 and 1985. He also kept a goat in Part A, tethered to a line. He erected temporary net fencing within Part A (the Triangle) for the goat, but neither the fencing nor the line caused an obstruction to people accessing Short Wood. In cross-examination, he explained the goat would browse off a strip of herbage before he moved the line so it could browse another strip, until it was all gone. The goat was kept in a goat shed overnight. It was only there for the summer months, and only for one year towards the end of his time living there, in the 1980s.

42. Perhaps the most important aspect of Mr Pozorski’s evidence is his recollection of the fencing. He does not remember any permanent fencing around the Triangle. His statement describes the area as “ a very relaxed, unobstructed space and freely accessible. In the years I lived there the whole area of Shortwood was an open space and there was no restriction of access … Residents of Shortwood Villas and the public were able to walk in and out of Shortwood with ease, without any obstruction ”. In cross-examination, he said that the only fencing in the area was railway fencing at the bottom of the bank, but that was dilapidated. He had no recollection of fencing going up in 1974, and says that, in fact, he erected temporary net fencing in Part A (the Triangle) for the goat, the inference being he would not have needed to do that had it already been fenced. He had no recollection of Short Wood being fenced from the Path to the north of the Triangle. When asked whether only the tip of the Triangle was open, he said his recollection was that it was open all the way down, although the tip was possibly the most used entrance and exit. He said that, whether it was allowed or not, people accessed Short Wood this way. More recent incidents

43. It is convenient at this point to fast forward to more recent times. This is because the remainder of the witness evidence covers a wide time period and often includes or makes reference to what has happened latterly.

44. The Second Respondent avers that, when the Applicant purchased Short Wood in 1993, he asked to buy the Triangle, telling the Second Respondent that this was for vehicular access rather than to build on.

45. In 2004, the Applicant offered (in writing) to buy the Respondents’ Land for £30,000, or alternatively the Triangle for £1,000. The latter was said to be an area “ which he can use to improve his access to his woodland ”.

46. In or around 2006, the Respondents began to have issues with Mr Steeples, of Number 1 Shortwood Villas. He was having work done to his property, which the Second Respondent felt encroached on the Path. He obtained a report from Terry Sykes, chartered building surveyor, which contains photographs taken in August 2007, some of which are set out above.

47. In 2008, the Driveway was installed on or around the Strip. It appears to be accepted that this was done by Mr Steeples. The Respondents allege that this was on the Applicant’s instruction, apparently because that is what Mr Steeples told them, and put this to him in cross-examination. The Applicant denies that he had any involvement. He said he did not know who had done it, but he had a good idea, and he did not know why anyone would tell the Second Respondent he had instructed it, as that would be an untruth.

48. In January 2021, the Applicant instructed a Mr Siddons in relation to new fencing between the Respondents’ Land and Short Wood, but the Second & Third Respondents objected when Mr Siddons attempted to use the Strip. He then wrote to the Second Respondent in relation to what he described as the “ continued problem ” of trespassers “ entering through the Shortwood Villa section of fence ”, hoping to reach “ some amicable arrangement regarding new fencing ”. The Applicant then made his application in October 2021. Other evidence on behalf of the Applicant

49. In addition to his evidence relating to the Company and shooting, the Applicant gave evidence that he has used the Strip to access Short Wood at least 2 or 3 times a week since his retirement in 1993 (at least until this dispute flared up in 2021). In cross-examination, he maintained that he used the Strip, and was not talking about the tip of the Triangle or alternative access further east. When it was put to him there was no break in the foliage in 2006/7, based on the photographs, he maintained that he could access Short Wood “ straight in there ”. In relation to one particular photograph, he said there was an area with no undergrowth that was not in the picture. When it was put to him that there was no path across the grass in the photograph in figure 7, he said that going up there 2 or 3 times a week would not make that much of an impression. When the photograph at Figure 11 was put to him, he explained that, at times when the boundary between the Respondents’ Land and Short Wood was fenced, he would unhook the barbed wire to gain access. He said this first started happening in 2017/8. He denied using weedkiller in this area, although the Second Respondent at that point clarified that he was not accusing the Applicant of having been involved.

50. The Applicant’s daughter Ms Kim Fleetham also gave evidence. She gave evidence that, historically, the Applicant would visit Short Wood almost daily and that on occasions she would be with him. She said she had been going down to Short Wood since she was 14; that she would visit more regularly, perhaps once a week, between 1997 and 2021; and that she used the Strip as access. She said she never had to stride over fencing or barbed wire, though she would unhook the fencing that can be seen in figure 11.

51. The Applicant also relies on further evidence from Mr Peake, who has lived at Number 5 Shortwood Villas since 1982. He gave evidence that he had used the Strip, and that 6 or 7 families also used it to access to Short Wood to play there, particularly mentioning swings and dens. He accepted there were posts between the Path and the Triangle but did not remember it being completely fenced until the problems in 2006/7. He did not accept that it was covered in brambles, and said it is as bad now as it has ever been. He said there were occasions when the Triangle was fenced off, but said it was a waste of time maintaining it as it was always vandalised. In relation to the fence in figure 11, he accepted he had climbed through it.

52. Finally, the Applicant relies on the evidence of Mr Roger Adderley. His evidence primarily relates to the period from the mid-1990s onwards (his statement refers to the past 27 years), although he confirmed he has lived in the area all his life (since the 1970s). For much of that time, he lived at Number 2 Shortwood Villas. His evidence is that he has himself used the Strip as access (latterly with the Second Respondent’s permission, but even on the Respondents’ case this is no earlier than 2019), and that he has also witnessed the Applicant using the Strip. Although his statement refers to the Applicant accessing Short Wood “ over the tip of the Respondents’ Land ”, he confirmed that this meant the Strip, and that his use of the word “ tip ” referred to the Triangle. He accepted that there had been barbed wire periodically all over the area, including to the side of the Strip and to the side of the Path, but that it had never lasted more than a few weeks. He described the fences as “ going up and down more than them lifts ” (referring to the lifts in the Tribunal building). When it was put to him that there was no break in the foliage in 2006/7, based on the photographs, he maintained that access was still possible, suggesting that the photographs of the brambles and the bracken had been “ cleverly angled ”, and that there was a gap but that it was not visible. Other evidence on behalf of the Respondents

53. The evidence (as opposed to arguments) of the Respondents is quite limited, largely focusing on the period from 2006 onwards.

54. The Respondents’ case is that the Triangle (and therefore the Strip) has been fenced off since at least 1974, when Alf & the Second Respondent purchased the Respondents’ Land. However, I am still not entirely clear if the Second Respondent is saying that it was fenced for the first time then, or that he and Alf ensured that it was fenced then, by checking it and carrying out any necessary repairs. He accepted there were no photographs from earlier than 2006 showing the fencing, and said he never thought to keep receipts for the posts and barbed wire. The Third Respondent said he remembered the area being overgrown, even from the age of 3 (so, from the early 1980s).

55. The Second Respondent gave evidence of signs on the Respondents’ Land. This was a new point that was not apparent from the Respondents’ written case. Initially, he said the first sign went up in 1974, saying that Alf “ would have ” put it up, and probably the tree later cut down. Upon questioning, he clarified that he could not remember Alf putting up signs in 1974, but said he himself put some up in the 1980s. The Third Respondent said there was a sign older than him (so, from the 1970s) on the land.

56. The Second Respondent accepted he was not on the Respondents’ Land all the time, confirming that he lived a 15-20 minute walk away, but gave evidence that he goes down there nearly every day. Both the Second & Third Respondents deny seeing anyone using the Strip, save for 2 or 3 occasions more recently.

57. Both the Second & Third Respondents gave evidence about damage to fencing and the maintenance that they have carried out. In particular, I note it is accepted that not all of the 2006/7 photographs show complete fencing – they say that some of these photographs show the fencing when the barbed wire has been removed.

58. When questioned about the Driveway, the Second Respondent explained that he did not go to court over it due to the cost, that he had no choice but to put up with it.

59. Mr Pete Allen gave evidence on behalf of the Respondents in relation to the period from 1979 to date. He uses the Path as a shortcut between Birdwell & Hoyland, now at least once a week, but previously more frequently, perhaps 3 or 4 times a week. His written statement states that the Strip has never been driven over to access the Wood. When asked about this in cross-examination, he said he “ thought that’s what the Applicant was after ”, which I took to mean that he thought the Applicant was claiming a right of way with vehicles. He said he got his information from the Second Respondent, and the first time he realised this was incorrect was at the start of the hearing (when the issues were being outlined). His evidence was that the area was fully fenced off with fence posts and two rows of barbed wire until the Driveway was installed. He maintained that the Driveway was installed in 2009 rather than 2008, but could not explain why he was clear it was one year rather than the other. He said he had never known it not to be fenced, and that there was no access on foot to Short Wood.

60. Ms Ann Carroll is the Second Respondent’s ex-wife and the Third Respondent’s mother. She gave evidence of her knowledge of the area from 1972-1996, which is when she separated from the Second Respondent. She says the family went to the Respondents’ Land on a regular basis during this time, for recreation. She says the Triangle was fenced off with posts and barbed wire. She also said the Strip never had visible signs to show that it was in regular use by anybody, and she never saw anyone with shotguns. She was asked what the Strip looked like in 1996. She said she could not remember, but went on to say it was more than likely fenced off as the it was always fenced off. She also mentioned the fence being renewed, but her evidence on this was not very clear. Several times, her answer was that she was sorry, she did not know. She mentioned that there were 2 or 3 signs up in the early stages, saying “ Keep off private land ”.

61. Mr Dennis Lawton provided a witness statement on behalf of the Respondents but did not attend to give oral evidence. He says he has used Shortwood Way for over 50 years (so since the 1970s), and that there was never a road, footpath, or track in the area of the Strip until the Driveway. He remembers it fenced off and overgrown.

62. The Second Respondent was also cross-examined about other matters, less about the Strip itself but more his reasons for objecting to the application and/or disputing the Applicant’s evidence: (a) He confirmed he understood the Applicant was only seeking a right of way on foot, but said that the Applicant had always said he wanted vehicular access for his daughter, and that he often mentions this when explaining the dispute. (b) He was asked about his theory that the Applicant wants to build a house. His answers here were somewhat confused. When it was pointed out that there would be no vehicular access, the Second Respondent replied that there was a “ hidden agenda ”, and mentioned ransom strips. He also explained that having a footpath would mean that they could not build or sell their land to anyone who wants to build. When he was asked why the Applicant had waited so long to make the application, he said the Applicant had waited until Mr Christopher Earnshaw had died, referring back to the statutory declaration. He confirmed he believes that the Applicant’s aim is to acquire the land at a pittance. (c) When it was put to him that he has a hatred and dislike of the Applicant, he said he disliked the Applicant’s constant lies, and asked if it was a joke when the Applicant was described as an honourable and honest man. He denied jumping to conclusions and overlooking plausible explanations. Findings of fact

63. My primary findings of fact are as follows: (a) I am satisfied on the balance of probabilities that the Strip was used as an access point from the Path to Short Wood from 1955-2021, by the Company for removing timber, by the shooting syndicate, and by local residents and the Applicant and his family to access Short Wood for recreation (although not all for the entire period); (b) I am not satisfied on the balance of probabilities that the Strip was fenced until at least 2006, in the case of the end adjoining the Path, or 2017, in the case of the boundary with the Respondents’ Land; (c) I am not satisfied on the balance of probabilities that there were any signs on the Strip until recent years. I have reached these conclusions for the following reasons.

64. I do not accept the Respondents’ argument that access was via the tip of the Triangle. It is notable that there is no clear evidence from the Respondents that they saw people accessing Short Wood here; rather, their argument appears to be based on a particular understanding of some of the written evidence (e.g. the references to tip and 4/5metres). However, other of the written evidence was clear that the access was to the left of the Footbridge, which accords with the Strip. Moreover, I have heard the Applicant and all of the witnesses who gave oral evidence, with the assistance of plans and photographs, confirm that their evidence related to the Strip (Mr Pozorski did mention the tip being a common access point, but confirmed that people used the Strip as well).

65. I do not accept the Respondents’ argument that access would not have been possible as the Track was not decommissioned until around 1962. The Applicant gave evidence as to rarity of trains using the Track. There was no evidence from the Respondents otherwise.

66. I do not accept the Respondents’ argument that access by the Company for the purposes of removing timber would not have been possible due to the lie of the land. Mr George Scothorn and Mr Peake both mention winching, which is not implausible given that the Strip is reasonably level other than the slope, which is steep but short. Moreover, there is some sense in accessing Short Wood as close as possible to the end of Shortwood Way, rather than further around to the rear of Shortwood Villas, which would have been more cumbersome for large vehicles. There are several witnesses to the use by the Company, and the fact that none of the Respondents’ witnesses saw this happen is not particularly surprising given that it happened only once or twice a year.

67. I do not accept the Respondents’ argument/evidence that the shooting syndicate did not use the Strip and/or that Alf did not give them permission. The Respondents did not dispute that shooting went on in Short Wood. There are a number of witnesses who gave evidence of the syndicate using the Strip. There are also a number of witnesses who gave evidence of Alf giving permission, which in fact goes against the Applicant as a right of way cannot be based on permissive use. The evidence against Alf having given permission from Mrs Kemp and the Second Respondent is ambiguous, in that what Alf said may have related to the Bird Sanctuary and/or the remainder of the Respondents’ Land. I do not consider it to be implausible for Alf, even as a bird lover, to have given permission for access over a short distance, very near the edge of his land, that had already been used for many years, for shooting which he knew was taking place nearby.

68. The Applicant relies on evidence from Mr Pozorski, Mr Peake, and Mr Adderley, all of whom live or lived near to the Strip for lengthy periods of time. They may not have been watching the Strip constantly, but they all gave evidence that they used it (or in Mr Pozorski’s case the land near it), and so had reason to be aware of it.

69. I found Mr Pozorski in particular to be a very credible and reliable witness. He was exceptionally considered and measured in giving his evidence, for example he corrected what he described as an “ inexactitude ” in his statement (which referred to Shortwood Way before that was the name by which the road went). Not all of his evidence was completely in support of the Applicant, for example admitting that he had not seen the removal of timber. He was brought into the proceedings part way through, was not really known or close to either party, and was not embroiled in the recent fencing issues. He was in my view an independent witness with no axe to grind. I note for completeness that, at the end of cross-examination, the Second Respondent put to Mr Pozorski a conversation the two of them had had about Mr Pozorski’s son, including details about the son that the Second Respondent says he would not otherwise have known. Mr Pozorski did not recall the conversation, which the Second Respondent argued demonstrated that his own recollection was more reliable than Mr Pozorski’s. I do not accept that a failure to recall a conversation that was essentially a friendly chat completely unrelated to these proceedings undermines the reliability of Mr Pozorki’s evidence.

70. Mr Peake and Mr Adderley are also independent to an extent, but probably less so as they have been caught in the crossfire between the Respondents and the Applicant and/or Mr Steeples. I found them to both be frank and straightforward in giving their evidence, albeit a little exasperated by the Second Respondent.

71. These three witnesses’ knowledge of the land is in contrast to the evidence of Mr Allen and Ms Carroll (and Mr Lawton, whose evidence is in any event less persuasive as he did not give oral evidence). They were very much passers-by, and I find it difficult to accept that they would have really noticed the state of the fencing. I also have further reasons to doubt the reliability of their evidence: in Mr Allen’s case, he insisted the Driveway was installed in 2009 rather than 2008 without any justification: this accords with the Respondents’ original position but not their changed position at trial, and suggests that Mr Allen came to the Tribunal to stick to his evidence come what may; in Ms Carroll’s case, she was confused in giving her evidence, and confirmed that she did not have any real memory of the appearance of the land in 1996.

72. One of the Respondents’ arguments relating to use is that the Strip was fenced and so could not have been used, at least not without force. Mr Pozorski gave evidence that the Triangle was not fenced between 1969 and 1985. I have already described him as an independent witness. Moreover, his keeping of a goat on the Triangle (which was not challenged) is good reason for him to have had an awareness of the fencing, or lack of. His evidence is consistent with the later evidence of Mr Peake and Mr Adderley.

73. Against that, there is the evidence of the Second Respondent. His evidence that the Triangle was fenced was not clear, as previously explained. There are no photographs prior to 2006, and I do not consider the supporting witness evidence to be reliable for the reasons given above. I do not accept that the cuts on the Wire Tree demonstrate that the Strip itself was fenced historically, in circumstances where there have been fences in the vicinity and/or more recently.

74. I also note that the photographs of the Driveway from 2010 do not show fencing going across the front of the Knobbly Tree, whereas the photographs from 2018 do (the Second Respondent submitted that there is wire visible to the right of car’s wing mirror on the 2010 on the photograph from 2010, but I cannot see it, and there is in any event no post nearby). This suggests that the boundary between the Respondents’ Land and Short Wood was not fenced from 1974 as alleged. It is also consistent with the Applicant’s evidence that he was only required to unhook fencing along this boundary from 2017/8 onwards.

75. In relation to the fencing, it is clear that the Strip has been fenced in more recent years: the Applicant and his witnesses gave evidence that they have effectively ignored it, e.g. by unhooking the fence on/near the boundary, and accepted it is regularly damaged, albeit not by them. On the Respondents’ case, the damage began in 2006/7. I ask myself why fencing was damaged from around 2006/7 onwards. This coincides with the arrival of Mr Steeples, and one possibility is that the Strip was always fenced, and it was Mr Steeples that tried to start using it. However, that is to ignore completely the evidence of the Applicant and his witnesses. It seems to me more likely that the actions of Mr Steeples drew to the Respondents’ attention the Path and/or the Strip, leading them to fence it, and that it was then regularly damaged because people were unhappy that a frequently used point of access had suddenly been cut off.

76. Another argument is that the photographs from 2006/7 show that access was not possible due to the undergrowth and/or that there was no path or track. I do not accept that these photographs show either. Whilst I do not say that this has been done on purpose, they simply do not show a complete picture of the junction between the Path and the Strip at any given point in time: they are taken from different positions, at different angles, and their quality varies considerably. They do not give me a good reason to think that the evidence of the witnesses who gave evidence of accessing the Strip at that time is unreliable. In any event, they are limited to the last 20 years or so, starting when the issues between the parties and/or Mr Steeples began.

77. The Second & Third Respondents denied seeing people using the Strip. I do not question their evidence that they would visit the Respondents’ Land frequently, or that they did not see people using the Strip. However, it does not seem to me particularly surprising that they would not have seen people using the Strip: they were not there all the time; the Strip is short, and would only be used for a minute or two at a time; and it is very much at one end of the Respondents’ Land, so there will have been times during their visits when they were elsewhere.

78. I am not satisfied there is cogent evidence of signs on the Strip until recent years. The evidence was not very clear, with the witnesses failing to properly identify where the signs were, when they were erected, or what has happened to them since. I bear in mind I am concerned with signs warning people against accessing the Strip, rather than the Respondents’ Land more generally.

79. The Applicant can point to a consistent body of evidence in support of his contention that the Strip was used as an access point to Short Wood. I find it entirely improbable that all of the Applicant’s witnesses, whose experience ranges a considerable time period, not all of whom know each other, and not all of whom have any reason to side with him, have ganged together and lied to the Tribunal in relation to this matter, which is the proposition put forward by the Respondents.

80. On the other hand, the Respondents find themselves relying largely on the evidence of the Second Respondent. He is not an independent witness. He has a marked dislike of the Applicant. He has formed the view that the Applicant is a liar; that there is something of a vendetta against him; that this is all a scam to enable the Applicant to get his land for a pittance. He mentions vehicular access, when that is not what is being asserted; and is fixated on the Applicant wanting to build a house, when there is no evidence of the same. In my judgment, he has lost all sight of reasonableness in this matter, and that has undoubtedly coloured his evidence. Analysis

81. Although I have found that the Strip was used as an access point, I still need to consider whether this is sufficient for the Applicant to have acquired a right of way by long use.

82. I am satisfied that the Company used the Strip from 1955 until 1993. However, I do not consider that this use alone – once or twice a year – is sufficient to amount to continuous use.

83. I am satisfied that the shooting syndicate used the Strip from 1955 until 1993. The period from 1974-1983 cannot be used in support of the right of way as it was with Alf’s permission (the period from 1983-1993 can be as the Respondents do not argue that this was with permission). The Applicant cannot rely on this alone to show the requisite period.

84. I am satisfied that local residents used the Strip to access Short Wood for recreation from at least 1969-2021. From 1969, the Applicant can rely on Mr Pozorski’s evidence; from 1982, Mr Peake’s evidence; and from 1993 the Applicant, Ms Fleetham and Mr Adderley’s evidence. I am satisfied that this use was continuous, that is, that it brought home to the owner of the burdened land that the right was being asserted. This is also reinforced by the less regular use by the Company, and the use by the shooting syndicate (including the Applicant) until 1974 and from 1983.

85. There is an argument as to whether this use was with force, either because the Strip was used in the face of signs and/or fencing that was damaged or ignored. I have already found that the Respondents cannot establish that there were signs on the Strip until relatively recently, or that the Strip was fenced until at least 2006. The Applicant can therefore establish 20 years of continuous use well before any issue of use with force arises. I therefore need not consider further any of the related arguments that arose in relation to the fencing of the boundary and/or whether the Applicant’s use can be said to be without force when it is a third party who has damaged fencing.

86. I am satisfied that the Applicant can show continuous use of the Strip as of right from at least 1969 until at least 2006. He has therefore acquired a right of way on foot by long use.

87. For completeness, I am satisfied that the easement overrides the registered disposition from the Second Respondent to the Respondents in 2013 – if nothing else, I am satisfied it was exercised within the period of one year ending with the day of the disposition (see paragraph 3 of Schedule 3 to the Land Registration Act 2002 ). Conclusion

88. For the reasons given above, I will direct the Chief Land Registrar to give effect to the Applicant’s original application dated 11 th October 2021 for registration of an easement as if the objection of the Respondents had not been made. For the avoidance of doubt, the easement is a right of way on foot.

89. I remind the parties that the Strip as it appears in in figure 3 is marked out with general boundaries only, that is, the edges of the blue colouring are not exact. Moreover, because of the recent issues, the Strip may not be as obvious on the ground as it once was. There has clearly been a lot of bad feeling between these parties for some time now, and I urge the parties to try and co-operate as and when needed going forwards. In particular, it might be useful for them to agree marking out the extent of the right of way to minimise the risk of further disputes in future.

90. I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would mean an order that the Respondents pay the Applicant’s costs, unless there is some good reason to make a different order. I know of no reason why it would not be just to make the usual order in this case. My preliminary view is therefore that the Respondents should pay the Applicant’s costs of the proceedings (from the date the matter was referred, 16 th December 2022), to be summarily assessed if not agreed.

91. Any application for costs should be sent to the Tribunal and the other side by 5pm on 7 th November 2025, and should include an estimate of the amount of costs sought. Further directions will then be given as appropriate. Dated this Friday 10 th October 2025 Laura D’Cruz By Order of The Tribunal