In this case, Mr and Mrs Welford claimed a right of way for vehicles over a yard owned by Mr and Mrs Graham. The Claimants based their claim for an easement over the land on the obscure legal principle of prescription based on last modern grant. Mr and Mrs Welford sought to prove to the First Tier Tribunal that they and their predecessors in title had regularly driven across the yard without force, openly and without consent for more than 20 years in order to formally gain this legal right.
At the First Tier Tribunal hearing, the Claimants’ witness evidence demonstrated that vehicles had driven across the land from the early 1960s to around 2012. While they had proved the open use for 20 years, the Tribunal decided that they had not shown that user had been without permission for 20 years as well and so the claim failed at first instance.
The Claimants then appealed to the Upper Tribunal, which upheld the appeal and granted them the easement. Where the Upper Tribunal departed from the earlier decision was that they decided that when a party had established the open use for more than 20 years, the burden of proof shifted onto the Defendants to show that this use had been with consent or by force. As the Defendants had not provided any evidence on these issues, the appeal was allowed.
This decision will make it easier for parties to claim prescriptive rights through long use. Previously, claimants had the problem of proving a negative when it came to showing that any long use had not been by consent and had not been by force.