Welford v Graham [2017] UKUT 297 (TCC)

When considering the burden of proof in relation to an alleged easement by prescription, the Upper Tribunal held that, although the legal burden of proof to prove that the use was ‘as of right’ lay on the party seeking to establish the easement, where that party had successfully proved that its use had been open for the required period, a rebuttable presumption arose that such use was not with the permission of the servient owner. Merely proof that there had not been an actual grant would not be sufficient.

The Tribunal based its conclusion on the wording of section 5 of the Prescriptions Act 1832 that suggest that the burden was on the servient owner to call evidence of permission. It also held that the existence of such a presumption made practical sense due to the inherent difficulty of proving a negative over an extended period of time during which the owners of the land may have changed.

The Tribunal also fixed the appropriate wording for the entry in the register reflecting that the extent of the right acquired by prescription is measured by the extent of it use during the relevant period. The following entry was approved for the register: “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.”