Easement by Prescription & Lost Modern Grant: Whether ‘occasional’ use when claiming an easement is an absolute requirement (Hughes v Incumbent of the benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne and Framilode – 2021)

In a church’s claim for an easement by prescription over a vehicular access track used by the church’s congregation, the Upper Tribunal considers whether the need for ‘occasional’ use is an absolute requirement.

The background

In Hughes v Incumbent of the benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne and Framilode [2021], the church incumbent made an application for registration of an easement over an access track which had previously been used for vehicular access to a small area used for car parking when visitors were attending the church or church yard. The track was situated on the site of a former school owned by the appellants and adjacent to the church. Use of the track had ceased in 2015 when the appellants’ predecessors in title purchased the site, and the appellants claimed that any use of the track following this time had been with their permission.

The application relied on the legal doctrine of ‘lost modern grant’, whereby an easement can be claimed where rights have been exercised for a 20-year period without secrecy, force or permission at any time from 1189; the use of the easement does not need to be proven as existing at the time of the application. In this case, the track had not been used since 1189 (vehicular rights not being needed at that point!), nor was it used at the time of the application in 2018.

Evidence from members of the congregation, as well as members of the clergy, was heard by the First-tier Tribunal ("FTT”), who confirmed that the access track had been used historically and occasionally for more than 20 years. The application succeeded, and the FTT found that a right of access existed by way of lost modern grant. The appellants appealed to the Upper Tribunal.

The decision

The Upper Tribunal dismissed the appeal, upholding the FTT’s decision and agreeing that a right of access existed for the benefit of the church.

The appellants argued that use of the access had only been occasional, therefore not used frequently enough to constitute a continuous right. The UT disagreed, concluding that evidence demonstrated a weekly use of the access track prior to the appellants’ predecessors’ purchase of the site which was sufficient to find access rights existed by lost modern grant. It was not an absolute requirement that use was more than ‘occasional’; the term is not precise and what constitutes ‘occasional’ depends very much on the facts of the case.

Advice and action for landlords

This case highlighted the importance of full site inspections and awareness for landlords and property developers when investing in new sites. It is a timely reminder of the principles of the doctrine of lost modern grant

Even where an easement has not been used for some time, is not in use at the time an application to the FTT is made, and where use may be deemed ‘occasional’, the Tribunal may well find in favour of the easement’s beneficiary where evidence shows that it was used for a 20-year period at any time since 1189, without secrecy, force or permission.