Easement – Prescription – Right of way – Appellants seeking to register right of way with or without vehicles over yard belonging to respondents – Appellants 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 – Appeal allowed
The appellants were the registered proprietors of a building formerly 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 appellants 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 appellants had acquired the workshop, and through some white doors in a wall which had been built at a similar time.
The appellants 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 and 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 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. The First-tier Tribunal (FTT) held that the application failed because the appellants had not proved that the requirements for prescriptive use were met for a period of 20 years prior to 2002: [2017] UKFTT 58 (PC); [2017] PLSCS 31
The appellants appealed on the grounds including that the FTT was wrong: (i) in relation to the burden of proof in respect of the presence or absence of permission for the use of the yard; (ii) in holding that any easement would be limited to access for loading and unloading; and (iii) in holding that an easement would be limited to use of the dominant tenement as a single business workshop.
Held: The appeal was allowed.
(1) Claimants bore the legal burden of proving that the use relied on was use “as of right”. However, they were entitled to rely on the evidential presumption that if the putative easement was used for the necessary period of time in the requisite manner, ie openly and so as to bring home to a reasonable owner of the servient tenement that a right was being asserted, then there was a rebuttable presumption that the easement had been enjoyed as of right and without permission. It was then open to the servient owner to call evidence that there had been permission, or that the use was contentious, to rebut that presumption. If such evidence were given, the court would decide on that evidence whether the presumption had been rebutted. In the present case, having called evidence to establish that the yard had been used openly and without interruption for a sufficient period of time, the appellants had the benefit of the evidential presumption that such user was as of right. The respondents did not call any evidence to rebut that presumption. It followed that the FTT ought to have held that the appellants had discharged the legal burden of showing relevant use, as of right, for a sufficient period. Accordingly, the tribunal would direct the Land Registrar to give effect to the application which had been made by the appellants: Tehidy Minerals Ltd v Norman [1971] 2 QB 528, Bridle v Ruby [1989] QB 169, Mills v Silver [1991] Ch 271, Jones v Price & Norman (1992) 64 P & CR 404, R (Lewis) v Redcar & Cleveland Borough Council (No 2) [2010] 1 EGLR 153 and London Tara Hotel Ltd v Kensington Close Hotel Ltd [2012] 1 EGLR 33 considered.
(2) In the present case, it was clear that the extent of the easement acquired by prescription was to be measured by reference to the extent of the use which gave rise to that easement. If, in the future, the owner of the dominant tenement wished to change the use of the dominant tenement, it had to be considered: (i) whether the intended change of use of the dominant tenement represented a “radical change in the character” or a “change in the identity” of the dominant tenement; and (ii) whether the intended use of the dominant tenement would result in a substantial increase or alteration in the burden on the servient tenement. Those questions involved matters of degree and evaluation which required close attention to the facts and circumstances. Accordingly, it was not possible in advance of a detailed identification of an intended change of use to answer those two questions in relation to some future change of use, Mills v Silver [1991] Ch 271, McAdams Homes Ltd v Robinson [2004] 3 EGLR 93 and Loose v Lynn Shellfish Ltd [2016] 2 WLR 1126; [2016] PLSCS 109 applied.
(3) As regards further attempts to spell out the extent of the easement in the present case, it would suffice if the register entry stated: “The extent of this right, having been acquired by prescription, may be limited by the nature of the user from which it has arisen which was use for the purposes of access to and egress from the dominant tenement when being used as a joinery workshop”: see Land Registry Practice Guide 52: Easements claimed by Prescription.
Howard Smith (instructed by Punch Robson, of Middlesbrough) appeared for the appellants; Stephen Fletcher (instructed by Macks Solicitors, of Middlesbrough) appeared for the respondents.
Eileen O’Grady, barrister
Read a transcript of Welford and others v Graham and another here
