The First-tier Tribunal (FTT) determined that an applicant had successfully established a prescriptive vehicular and pedestrian right of way over a respondent's land, leading to the rejection of the objection and the allowance of the application to update the land register.

Facts:

Ms. Freda Din, the registered freehold owner of Bryn Pistyll since December 2020, sought to register a pedestrian and vehicular right of way over an unmetalled track for the benefit of her property on 9 September 2022. This application was based on a claim of twenty years of prescriptive use.

Mr. Philip Wyn Edwards, the registered freehold owner of the unmetalled track since May 1999, objected to the application on 29 June 2023, primarily arguing that any use of the track was with his consent or by way of a licence and was not continuous.

Ms. Din’s case is that she purchased Byrn Pistyll on the basis that there was vehicular access to the rear of the property via the track, and she had used the track between December 2020 and July 2023. 

As the parties were unable to resolve the matter, it was referred to the Tribunal.

Decision: 

The FTT ruled that Ms. Din's application to register a prescriptive vehicular and pedestrian right of way over the track was successful, and that Mr. Edwards' objection had failed. The key element was that the use of the track for vehicular access to the rear of Bryn Pistyll had been continuous for a period of over two decades, as demonstrated by the evidence from the predecessor in title of Ms. Din. 

For a prescriptive easement, the use must be "as of right"—meaning that it was open, without force, and without permission. Mr. Edwards claimed Ms. Boomsma-Geldard’s use had been with consent, but did not provide any documentary or oral evidence to support this claim. Mr. Edwards and his witness confirmed they offered Mr. Walder a written licence to use the track in 2014, but Mr. Walder had never accepted the offer, and no licence was ever granted. The Judge concluded that Mr. Walder's use both before and after this offer was without consent.

The Judge rejected Mr. Edwards' argument that Mr. Walder's use was not sufficiently continuous because he did not always live at the property. The Judge found that Mr. Walder used the property as a residence when it suited him, and his use of the track was consistent with that occupation and was conducted freely and openly.

Implications:

The most critical implication of this case is the demonstration of how verbal agreements or failed written licences can prejudice a landowner's control over their property. Allowing the use of a land without clear, formal permission for an extended period risks the creation of a permanent legal right against the title.

A property owner who wants to prevent a prescriptive easement must ensure any use is clearly understood to be by licence or temporary permission (nec precario). This permission must be in writing (e.g., a signed licence or a deed of acknowledgement) and regularly renewed or documented. An unaccepted offer of a licence or an informal verbal agreement is legally insufficient to stop a prescriptive claim. If permission is not formalised, then the law will presume the use is "as of right" after twenty years.

The use does not need to be daily or constant, but rather consistent with the nature of the property. Use of an access track whenever the owner visits their house (even if not continuously resident) is thus considered sufficient.