Easements – Prescription – Right of way – Applicants seeking to register right of way without or without vehicles over yard belonging to respondents – Applicants relying on 20 years’ use prior to 2002 to establish right based on lost modern grant – Whether use with permission of landowner – Whether evidence sufficient to show that requirements of prescriptive use established for relevant period – Application dismissed
The applicants were the registered proprietors of a building which had formerly been used as a joinery workshop. The workshop had the benefit of an express right of way, with or without vehicles, along a back lane which gave access through wooden doors to the rear. The applicants applied to register another right of way in favour of the workshop over the neighbouring land of the respondents. The claimed way led over a yard which the respondents had acquired in 2012, the same year that the applicants had acquired the workshop, and through some white doors in a wall which had been built at a similar time.
The applicants asserted that the previous owners of the workshop had acquired the right by prescription. The respondents objected to the application, contending that any use of the way had been with the permission of their own predecessors in title and so could not give rise to a prescriptive right.
Because the yard was no longer being used for access to the workshop at the time of their application, and use for the purposes of the Prescription Act 1832 had to continue up to the date when an easement was claimed, the applicants relied instead on the doctrine of lost modern grant. They claimed that they could establish the necessary period of 20 years’ use of the way, openly, without force and without permission, prior to 2002, so that the application did not attract the additional requirements imposed under the Land Registration Act 2002.
Held: The application was dismissed.
The application failed because the applicants were unable to show that, at some time before 2002, the owners of the workshop had used the vehicular access across the yard to the white doors for 20 years openly, without force and without permission. While the evidence showed that the previous owner of the workshop had driven across the yard from 1978 onwards, and for at least 20 years prior to 2002, that was insufficient to establish the claimed easement because the applicants could not prove that the use was without the permission of the owner of the yard.
Although there was evidence from a former owner of the yard that he had not given permission during the period of his ownership from 1978 to 1988, there was an absence of evidence on that issue for the following period. There was no evidence that the subsequent owners gave permission and no evidence that they did not. While it was impossible to prove a negative, there had to be something to tip the balance of probabilities and show that it was more likely than not that the owner of the workshop did not have permission to use the yard.
While the owner of the yard up to 1988 had regarded it as a thoroughfare, the subsequent owners were probably aware that the yard was theirs. Although there was evidence that the then owner of the workshop had not believed he had a right of way, that might have been because he was unaware of the rules of prescription or might have been because he was aware that he had permission rather than a right. There was simply no evidence either way. In those circumstances, the applicants had not proved that the requirements for prescriptive use were met for a period of 20 years prior to 2002.
Henry Stevens (instructed by Punch Robson, of Middlesbrough) appeared for the applicants; Stephen Fletcher (instructed by Macks Solicitors, of Middlesbrough) appeared for the respondents.
Sally Dobson, barrister
Click here to read a transcript of Welford and others v Graham and another
