(1) David Welford (2) Diane Caroline Welford (3) Adriane Diane Welford v (1) David John Graham (2) Elizabeth Jane Graham [2017] UKUT 297 (TCC) Morgan J

The Appellants, who were the owners of a workshop, applied to the First-tier Tribunal (“FtT”) to register an easement over adjoining land owned by the Respondents. The Appellants argued that their predecessors in title had acquired the benefit of the right of way by long use of the way, as of right.

They appellants relied on the principle of lost modern grant to establish their claim based on the use by their predecessor in title from 1964 to 2012. The FtT accepted that there had been evidence of 20 years use, but determined that the appellants were only able to evidence use without permission for only 10 out of the 20 years required. The application was refused.

On appeal, the appellants submitted that although the legal burden of proving that the use was without permission lay on the party claiming the easement, they could rely on a rebuttable evidential presumption that the alleged easement used openly for the requisite period of time had been enjoyed as of right and without permission.

In allowing the appeal, the Upper Tribunal held that it was common ground that the burden of proving that the use in question was “as of right” was on the party claiming to have acquired the right by prescription. There was, however, a separate line of authority, to the effect that such use gave rise to a presumption of an earlier grant of an easement, but that presumption could be rebutted by showing, for example, that the use was with the permission of the servient owner. The presumption, however, could not be rebutted by proving that there had not been an actual grant prior to the commencement of the use.

The existence of the evidential presumption relied on by the appellants made practical sense. If such an evidential presumption did not exist, then the party claiming that right would have to adduce evidence that there was no permission at any point during the period of the use. This could prove problematic especially during the time when the dominant land was owned by a predecessor in title.