[2024] UKUT 217 (LC)

Of the three characteristics of the use required to establish a prescriptive right, the fact that the use relied on took place openly requires proof of positive actions but the requirement that it was not contentious or with permission are negative conditions. While the person claiming the right can reasonably be expected to lead evidence of the use they or their predecessors have made of the claimed right, it would not be practical or reasonable to require that they also prove that the use was not contentious and was not with permission. The person in a position to adduce evidence about those matters is the owner of the land, who can say whether they gave permission for the use or took steps to resist it. These evidential realities are reflected in the burden of proof in a claim to a prescriptive right.

The allocation of the burden of proof was considered in detail by the Tribunal (Morgan J) in Welford v Graham [2017] UKUT 297 (TCC), at [22]-[48]. The effect of the authorities, and the conclusion reached in that case, are explained in Gale on Easements, 21^st Ed. (2020) at paragraph 4-119, as follows:

In this case, therefore, it was for Mr Sagier to prove that he and Mrs Hewitt had openly made use of the claimed route to go backwards and forwards over the private road. Once he had done so, he could rely on an evidential presumption that his and his predecessor’s use had been as of right and, in particular, that it had not been contentious. It was then for Mrs Kaur to defeat that presumption by showing that the use had in fact been contentious.