The First-tier Tribunal (FTT) was asked whether an interference with a right of way, such as padlocked chains, breaks the continuous flow of the prescriptive period under the Prescription Act 1832.

Facts:

Mr. and Mrs. Irwin were joint registered proprietors of their property from September 2002 and had previously enjoyed continuous uninterrupted use of the grass track leading from the highway over the Sykes’ land, which was purchased in 2014.

From 2014 onwards, the parties held informal discussions about the validity of their respective claimed rights of way, and both continued to use the full length of the track unhindered. Around April 2015, the Sykes erected a barrier on the track at its junction with their property, “North End,” and intermittently placed a padlocked low-level single chain across it. They also erected a “Private Property Keep Out” sign.

The Irwins admitted that their right to use the track was challenged and called into question by the respondents during the period from 2015 to 2019, and that the Sykes did not advise the applicants that the barrier was placed to prevent their continuous use, but rather to stop unauthorised access for security purposes. The Irwins were never given their own key to the padlock, despite repeatedly asking for one, and when the barrier was locked, they had to ask Mr. Sykes to unlock it on each occasion with his key to pass through with a vehicle.

This state of affairs had continued until 2019, when the applicants threatened to place their own barrier on their respective section of the track unless they received a key, leading to the barrier’s eventual removal. The Irwins argued that their requests for the barrier to be unlocked were made as of right, not as a request for permission, and they never stopped using the track.

Decision:

The FTT gave effect to the Irwins’ application to add the prescriptive right of way on both the applicants’ and respondents’ titles. The Tribunal found that they had successfully established the prescriptive easement for the right of way over the respondents’ land.

The Tribunal also barred the Sykes from participating in the proceedings under Rule 9(7) of the Tribunal Rules on the basis of abuse of process. The respondents had previously signed a letter as part of a prior settlement (REF 2020/0182) agreeing not to oppose an application for a right of way in the precise terms now being claimed.

The applicants were able to establish over 20 years of continuous use up to the application date, satisfying the criteria for prescription, including those detailed under the Prescription Act 1832. The Tribunal accepted that the intermittent locking of the chain barrier between 2015 and 2019, combined with the applicants having to ask Mr. Sykes to unlock it, did not constitute an “interruption” sufficient to break the prescriptive period under the 1832 Act.

The Tribunal found that the applicants’ requests for the barrier to be unlocked were made “as of right” and were not communicated to them as being granted by permission. The act of unlocking was analogous to providing access through a locked gate without conveying permission for the underlying right.

Implications:

This decision provides helpful judicial guidance on how courts and tribunals interpret evidence of interruption and permission in a modern context, specifically for acquiring rights by prescription. The Tribunal reinforced that to break the continuous flow of the prescriptive period under the Prescription Act 1832, the interference must amount to an actual “interruption”, not merely making the use contentious or subject to discussion. The intermittent locking of the gate and the need to ask for access were found not to constitute an “interruption” because the applicants were never actually refused access.

The ruling confirmed the important distinction between asking a servient owner to facilitate access (e.g., unlocking a gate) and asking for permission to use the right itself. If the request is understood to be made “as of right,” it does not break the nec precario requirement.

The ruling provides a crucial qualification to the Winterburn v Bennett principle regarding prohibitive signs. While a general “Private Property Keep Out” sign can defeat a prescriptive claim, the Tribunal accepted a contextual argument as if the sign is reasonably understood to be aimed at the wider public and/or trespassers, and not the claimant whose property is accessed via the way, it may not be sufficient to make the claimant’s use contentious.

Another significant implication is the clear endorsement of using a prior settlement agreement to create a contractual bar that prevents an opponent from litigating a property right.