The decision of the First-Tier Tribunal (Property Chamber) in the case of Freda Din v Philip Wyn Edwards [2025] 9 WLUK 440, concerning a dispute about registration of a prescriptive right of way, offers an interesting insight into one of the conditions required for a prescriptive right of way to arise, namely the absence of permission. Although first instance, this judgment will be relevant to owners of land which others have been using (for instance, by exercising a right of way).
Background to the case
Ms Din purchased a cottage known as Bryn Pistyll in Welshpool on 15 December 2020. Immediately behind Bryn Pistyll there is a track which runs from the adjoining highway towards a farm. This track was owned by Mr Edwards.
Since the purchase of the cottage, Ms Din had been using the track for vehicular and pedestrian access to the rear of the cottage, except for the period between July 2023 and June 2024 when Mr Edwards erected a barrier to prevent Ms Din from using the track. Prior to 15 December 2020, the cottage was owned by Ms Geldard from August 2000 to September 2003, and then by Mr Walder for 16 years.
On 9 September 2022, Ms Din made an application to HM Land Registry to register a pedestrian and vehicular right of way over part of the track, owned by Mr Edwards, for the benefit of her own cottage as easement, on the basis that the track had been used continuously for more than 20 years. Mr Edwards objected to the application and, as a result, there was a trial at the Tribunal to resolve the dispute.
Both Ms Din and Mr Edwards relied on different witnesses including a neighbour (who was unhappy about being called to give evidence) to support their points during the trial.
Prescriptive easement
In broad terms, an easement is a right a landowner has over the land of someone else, such as the right of way which was in dispute in this case. One of the features of an easement is that it binds the future owners of the relevant land, namely both the land benefiting from the easement (the ‘dominant land’) and the land burdened by the easement (the ‘servient land’).
An easement can be created through different methods, including by ‘prescription’. An easement may be acquired by prescription based on one of the following:
- at common law;
- by a doctrine known as the doctrine of lost modern grant; or
- under the provisions of the Prescription Act 1832.
An easement by prescription will arise if the use of the servient land has been (among other things):
- as of right, meaning without the permission of the owner of the servient land, but with their knowledge, and without force; and
- exercised continuously for a period of at least 20 years, meaning that the use has been uninterrupted and at a sufficient level justifying that the owner of the servient land has been aware of it.
While permission will prevent an easement from arising by prescription, ‘acquiescence’ or passive toleration will not do so. Therefore permission needs to be a positive act such as giving express oral or written permission to the user. However, it is also possible for an ‘implied’ permission to defeat a claim for an easement by prescription, but such permission has to be inferred from an overt act of the owner.
In this case, Ms Din had to establish that she and the previous owners had used the track for 20 years as if it were their legal right. This means that it must have been exercised without the permission of Mr Edwards.
The Tribunal’s Decision
The Tribunal had to consider the facts of the case based on the evidence provided by Ms Din and Mr Edwards before applying the law and reaching its decision.
Ms Din’s evidence included statutory declarations signed by the previous owners, Ms Geldard and Mr Walder, confirming they used the track for vehicular access during their ownership. Mr Edwards’ evidence included an account of an accident Mr Walder had in 2014 which, as he put it, meant he could not live in the cottage anymore and use the track. Mr Edwards did concede that there had been use of the track for over 21 years before July 2023.
The main evidence put forward by Mr Edwards, however, was his statement that Ms Geldard’s and Mr Walder’s use of track was always with his permission. In particular, Mr Edwards and one of his witnesses, Mr Humphreys, stated that in or around 2014, Mr Edwards had offered to grant a licence to Mr Walder to access and use the track. Mr Edwards’s plan had been to have the licence written up so that, upon signing and completion, Mr Walder would have had the permission to use the track. Mr Edwards and his witness, however, confirmed to the Tribunal that this licence was never completed as (according to Mr Edwards) Mr Walder never returned to the cottage following his accident.
Considering the evidence provided by both parties, the judge held that:
- There was no evidence to suggest the use of the track had been with Mr Edwards’ permission, otherwise, on the balance of probabilities, there would have been written documents confirming this.
- Even after Mr Walder’s accident, on the balance of probabilities, he still used the cottage as a residence during his ownership (given, for instance, there was a TV licence registered under his name).
- While there were discussions about granting a written licence to use the track with Mr Walder, the offer of a licence was never accepted and the licence was never actually granted. On this basis, Mr Walder’s use before and after the offer was without Mr Edwards’ consent.
The Tribunal therefore decided in favour of Ms Din and her application to register a pedestrian and vehicular right of way over part of the track for the benefit of her cottage was approved.
Key takeaway
As discussed above, there appears to be a fine line between mere ‘acquiescence’ by the owner of servient land (which will not prevent an easement by prescription from arising) and an ‘implied permission’ (which, on the other hand, will negate a claim for an easement by prescription). In this case, it looks like the Tribunal did not consider that the mere act of offering a licence to Mr Walder qualified as an ‘implied permission’ and was likely seen an act of acquiescence given it was never completed but the track continued to be used by Mr Walder and then Ms Din.
This case offers a valuable insight into how the courts are likely to interpret the acts of the owners of servient land when considering if an easement by prescription has arisen. The decision highlights the importance of ensuring that any permission given to an owner of the dominant land is express, written and documented, otherwise there is a risk that an easement by prescription may arise if certain conditions are met.
If you are the owner of a servient land or a dominant land, seeking to register an easement or prevent an easement from being created, or have any questions in this regard, our Property Litigation team will be happy support, so please do contact us.