Freda Din v Philip Wyn Edwards

Right of way – vehicular and pedestrian – evidence of user over 20 years – licence granted by owner of servient land Cases referred to: R (Bereford) v Sunderland City Council [2003] UKHL 60 : [2004] 1 AC 889 . Fernance v Simpson {2003] NSWSC 121 Campbell v Wilson (1803) 3 East 294. Introduction

1. On 9 September 2022 the Applicant, Freda Din (“ Ms Din ”) made an application (“the Application ”) on a Form AP1 to HM Land Registry to change the register of title number WA914313, an unmetalled track (“the Track ”). By the Application Ms Din seeks to register a pedestrian and vehicular right of way over part of the Track for the benefit of her own property. The Application was supported by three Statutory Declarations.

2. On 29 June 2023 the Respondent, Philip Wyn Edwards (“ Mr Edwards ”) objected to the Application. The objection challenged the accuracy of the statutory declarations and the ability of those making them to give the evidence contained in them. The detail of the objection is addressed in more detail below.

3. As the parties were not able to resolve the matter it was referred to the Tribunal and Ms Din was required to provide her statement of case in February 2024. The trial of this matter took place in person on 16 May 2025 and was preceded by a site visit the day before. Background The Parties and the Properties

4. Ms Din is the registered freehold owner of Bryn Pistyll, Foel, Welshpool (“Bryn Pistyll”) a semi-detached cottage that abuts the A458. The title number of Bryn Pistyll is WA985035. Ms Din purchased Bryn Pistyll on 15 December 2020 and became the registered owner on 13 January 2021.

5. Mr Edwards is the owner of various properties in and around Foel, including the freehold of the Track. He became the registered owner of the Track on 13 May 1999. He acquired the freehold of the Track by a transaction dated 1 December 1998 which appears, on the face of the official copy entries for the Track, to have been a gift.

6. The front elevation of Bryn Pistyll immediately abuts the pavement by the A458 and has a front door and various windows which are typical of cottage windows. The cottage itself at Bryn Pistyll can also be accessed from the rear.

7. The Track runs from the A458 north-westerly towards a farm known as Lletypiod. Travelling up the Track from the road Bryn Pistyll is on the left at the bottom of the Track. The rear garden of the cottage adjoining Bryn Pistyll, Bryn Hyfryd abuts the Track above Byrn Pistyll. On the right of the Track is a field that Mr Edwards informed me he owns as a separate title from the Track.

8. The plan below shows the Track and the adjoining properties. Part of the Track, including the relevant part, is shown coloured yellow on the Plan. Bryn Pistyll is the property edged red. Although it has, and continues to undergo significant renovation it occupies much the same footprint. On the ground at the time of the site visit vehicular access to the rear of Bryn Pistyll was perfectly possible and had the appearance of being fairly established. Bryn Hyfryd is shown to the west of Bryn Pistyll. Both parties informed me on the site visit that although not shown on this plan the rear garden of Bryn Hyfryd continues northward until it meets the Track immediately above the boundary between the Track and Bryn Pistyll. The Witnesses

9. Both Ms Din and Mr Edwards gave evidence. In addition, Mr Gwilym Humphreys (“Mr Humphreys”) a farmer and agricultural consultant who was been involved with and assisted Mr Edward’s family for more than 50 years gave evidence for Mr Edwards. Mrs Lindsey Pusey, a neighbour of the parties who has lived in Foel for 7 years was also called by Mr Edwards. The Application

10. The Application to register a pedestrian and vehicular right of way over the Track on the basis of 20 years’ use of the same to access the rear of Bryn Pistyll. During the hearing Ms Din confirmed that she relied on vehicular use between 31 August 2002 and July 2023 and from June 2024 onwards. It is a matter of agreement between the parties that between July 2023 and June 2024 Mr Edwards erected a barrier to prevent the use of the Track to access the rear of Bryn Pistyll. The Site Visit.

11. I conducted a site visit the day before the hearing. Both the parties attended.

12. The Track appears much as it is shown on the plan above. There was no sign of any vehicular access to the rear of Bryn Hyfryd from the Track although there were some signs of past pedestrian access.

13. Although the area to the rear of Bryn Pistyll was undergoing renovation it was apparent that the layout of Bryn Pistyll and the Track is largely unchanged and the renovations that have taken place do not include any changes that impact on the claim to a vehicular right of way.

14. During the site visit I noted that it would not be easy to tell if anyone was in occupation of Bryn Pistyll or even whether they were parked to the rear when driving past on the A248. Further, for at least part of the year someone in Mr Edwards’ field adjoining the Track looking towards Bryn Pistyll would not easily see any car was parked to the rear of Bryn Pistyll as it would be obscured, or partly obscured by the hedges between the field and the Track. The photographs produced by the parties show that the hedges along the Track have been a consistent feature. The Statements of Case and the Issues

15. Ms Din’s case as set out in her statement of case and as articulated and expanded upon at trial can be summarised as follows: - (a) She purchased Byrn Pistyll on the basis there was vehicular access to the rear of the property via the Track; (b) Between December 2020 and July 2023 she used the Track to gain vehicular access to the rear of Bryn Pistyll; (c) She had obtained statutory declarations from her predecessors in title which confirm the vehicular access during their ownership being:- (i) Between September 2003 and September 2000 (an apparent typographical error for 2020) in the case of Darren John Walder; and (ii) August 2000 to September 2003 in the case of Janet Boomsma-Geldard; (d) Accordingly, the Track was used for such rear vehicular access for over 21 years before July 2023 and again since June 2024; and (e) Multiple local residents recall the use of the Track for vehicular access to Bryn Pistyll and the owner of Bryn Hyfryd, Rosemary Agnew, confirmed use of the Track for rear access to her property.

16. Mr Edwards case, as set out in his statement of case, which was confirmed by him at trial, is that:- (a) Ms Din used part of the Track for vehicular access between December 2020 and July 2023; (b) Thereafter Mr Edward’s prevented such access until about June 2024 when it resumed; (c) Janet Boomsma-Geldard owned Bryn Pistyll from August 2000 until 12 September 2003; (d) Janet Boomsma-Geldard’s predecessor was granted a licence and her statutory declaration refers to that but Mr Walder does not recollect her and makes no reference to any licence or consent for vehicular access being granted to her by Mr Edwards or his predecessors; (e) Mr Walden did not own Bryn Pistyll until after Janet Boomsma-Geldard and accordingly only owned it for 16 years; (f) Mr Walden enjoyed a right to use the Track for vehicular and pedestrian access to Bryn Pistyll by reason of consent given by Mr Edwards; (g) Mr Edwards and Mr Humphreys met with Mr Walder and agreed Mr Walder would enter into a licence for use of that rear access in 2014, but the document was never completed because Mr Walder did not ultimately move into Bryn Pistyll; (h) Mr Walder did not live at Bryn Pistyll and did not have tenants; accordingly, his use of the rear access was not constant; (i) When Mr Walder did park at Bryn Pistyll he only used the bottom section of the Track and did not use it all the way up to the rear boundary with Bryn Hyfryd; and (j) Mr Edwards reminded Mr Walden he could not sell Bryn Pistyll with the benefit of a right of way before it was sold to Ms Din and Mr Walden commented “… Don’t say that Phil, you will have cost me £80,000 …”.

17. Mr Edwards expressly admitted in his statement of case, which had a statement of truth signed by a solicitor on his behalf, that vehicular access to the rear of Bryn Pistyll via the Track had been obtained for in excess of 21 years. He contended it had not been continuous and was “… always exercised with the consent of the Respondent and/or by way of licence .” I take the reference to “the Respondent in this context” to be Mr Edwards and his predecessors in title. Despite that global assertion that the whole 21 years user was with consent, on the face of Mr Edwards’ statement of case there is no other evidence of any agreement with, or licence or consent given to either Ms Din or Janet Boomsa-Geldard at any time. In addition, there is no evidence of any agreement, licence or consent to, or discussion about the same with, Mr Walder prior to 2014. That absence of evidence is relevant given the fact that on the face of the documentary evidence he purchased the property in 2003.

18. At trial both parties confirmed that it was accepted that the Track was, in all probability, used for pedestrian access to the rear of Bryn Pistyll at all times when someone was present.

19. Accordingly, the issues I need to decide are whether:- a. The Track was used for vehicular access to Bryn Pistyll with sufficient continuity to support a claim to a prescriptive easement during the periods it was owned by Janet Boomsma-Geldard and Mr Walder; and b. Whether the use by either or both of Janet Boomsma-Geldard and Mr Walder was with the consent or pursuant to a licence granted by Mr Edwards or his predecessors.

20. Mr Edwards’ position at trial in relation Mr Walder was not entirely consistent with his statement of case. Mr Edwards argued that Mr Walder may have visited Bryn Pistyll, albeit rarely, but he never really stayed there and certainly never lived there. The argument advanced by Mr Edwards appeared to be that if Bryn Pistyll was not lived in during Mr Walder’s ownership that simple fact meant there was not sufficient continuous use. In addition, in his evidence Mr Humphreys confirmed that a written licence for access was offered to Mr Walder. However, he said that no agreement was reached as Mr Walder wanted to go away and think about it. Mr Walder never came back to Mr Edwards and Mr Humphreys to accept that offer. The Evidence Documentary Evidence

21. Neither party has challenged the authenticity of any of the documents produced, including photographs.

22. There are various office copy entries produced by the parties, which confirm the ownership of the Track as described above and the ownership of Bryn Pistyll by Ms Din and her predecessors on the dates Mr Edwards gives. That confirms as Mr Edwards points out that Mr Walden’s statutory declaration is inaccurate in that respect.

23. Ms Din has produced documentation from around 2016 addressed to Mr Walder at Bryn Pistyll which relates to the proposed changes to the property to accommodate his needs after an accident. That documentation proceeds on the basis that Mr Walder was already living at Bryn Pistyll. The documentary evidence also includes a TV licence for Bryn Pistyll covering 2018/2019.

24. The material before me included sales particulars for Bryn Pistyll in draft form dated 20 September 2019 and signed by Mr Walder to confirm they were correct. Those particulars referred to a “ Parking space and rear yard ” and “ Gravelled car parking space to the rear …”. Given the layout of Bryn Pistyll it was accepted by both parties that could only be a reference to a parking space accessed via the Track. I note that Mr Edward contends that any parking would also be, at least in part, on the Track, which Ms Din claims the real boundary sits just outside the area used for parking. This referral did not include any boundary dispute and Ms Din confirmed as the Application and supporting material appears to indicate, the Application is confined to a right of way and not a right to park. Accordingly, although the parties spent some time on that aspect I will not be addressing it in my Judgment and I make no findings as to the location in which any vehicles were parked from time to time, save that all parking was to the rear of Bryn Pistyll and cars got from the highway to the place they were parked by passing over part of the Track.

25. There is also a letter sent by John Fairclough, describing a meeting with Mr Edwards on 13 March 2022. Mr Fairclough was confirmed to be a resident in Foel who endeavoured to assist the parties to find a compromise. He recorded Mr Edwards told him that the previous owner of Bryn Pistyll (which would be Mr Walder) had had a verbal arrangement for vehicular access, but it was not transferred to Ms Din. The suggestion that there was a verbal arrangement in place between Mr Edwards and Mr Walder does not accord with the witness statements and oral evidence of Mr Edwards and Mr Humphreys. Mr Edwards is also reported by John Fairclough as having confirmed that once his building work, which was affecting the Track was complete, he had no objection to Ms Din using the Track for vehicular access to allow her to park to the rear of her property.

26. Ms Din produced a large number of proforma documents, that she produced, and asked neighbours to sign. They were all signed and dated February to March 2024. They stated that “Footpath 229/7” which is a reference to the public footpath over the Track “… has always been used to facilitate vehicular access to Bryn Pistyll …”. The statements contain no indication of the period of time they are said to relate to and contained no evidence of how an individual signatory felt able to make such a statement.

27. In addition, Ms Din produced a short document apparently signed by Ms Agnew on 26 May 2022, which had no statement of truth on it. It stated that at all times from 2000 she had use of the Track for a vehicular and pedestrian right of way. The document says nothing about access to Bryn Pistyll and Mr Edwards rightly points out that currently on the ground no vehicular access is possible.

28. I have read and considered all of these documents. In relation to the documents from neighbours and Ms Agnew obtained by Ms Din I find no useful or reliable relevant evidence going to the issues I need in order to determine the Application. Accordingly, having considered them carefully they have paid no part in my decision making. Ms Din’s Witness Evidence

29. I heard oral evidence from Ms Din. She was cross-examined by Mr Edwards. Consistent with his statement of case he did not challenge her evidence that she had made use of part of the Track for access to Bryn Pistyll during her ownership.

30. Most of Mr Edwards’ cross-examination and therefore Ms Din’s evidence was focused on the content and tone of their contact and communication including over the presence and hiring of a skip. Mr Edwards suggested he offered to permit parking on the Track. Ms Din rejected that suggestion. In any event Mr Edwards did not suggest any agreement was reached or that Ms Din acceded to his terms. As I indicated during the course of Ms Din’s evidence the content and tone of their arguments, given the acceptance they did not arrive at any agreed basis for the use of the Track, directly or via Mr Fairclough, did not take matters any further in relation to the issues before me.

31. Mr Edwards also cross-examined Ms Din about Ms Agnew and her use of the Track and the documents from other neighbours. Since I have concluded that material does not have any probative value going to the relevant issues again the cross examination on those points does not progress the matter.

32. Ms Din was consistent in her account of the actual use made by her. She was also consistent in her belief, based on the limited documentation she has produced and her understanding, when she purchased Bryn Pistyll, that Mr Walder did use the Track for vehicular access consistently when he owned the property. However, she accepted fairly that she had no direct evidence of that use.

33. Ms Din was clearly very focused on the elements of her evidence that she wished to convey to me rather than necessarily the elements that were relevant to the issues I need to decide. Indeed, both Ms Din and Mr Edwards were very focused on the communications between them including the tensions about Mr Edwards construction work and the skip used for Ms Din’s works. I am satisfied Ms Din was seeking to give accurate and honest evidence. However, I also reached the conclusion that she has become very committed to her cause and is not entirely objective or able to identify, even when given explanations as to the real issues, what is helpful, unhelpful or relevant evidence. Statutory declarations

34. I also read statutory declarations from the following: - i. Janet Boomsma-Geldard who stated she understood an agreement for vehicular access was made by her predecessor with Mr Edwards’ parents and goes on to assert that she used the Track as a vehicular and pedestrian right of way without permissions throughout her ownership; and ii. Darren John Walder who stated that since his purchase in 2000 he had enjoyed a vehicular and pedestrian right of way without permission. I read each of the statutory declarations in detail, before during and since the trial. I have exercised caution in relation to the evidence contained in them for a number of reasons. First, the witnesses were not called and their evidence was untested. Second, the statutory declarations contained very little detail. Third, the date of Mr Walder’s purchase is wrongly stated to be 2000. Finally, the content of the two statutory declarations are similar.

35. Mr Walder’s statutory declaration is corroborated in a number of key respects by the documentation relating to him, his occupation, his proposed adaption of Bryn Pistyll and the draft sales particulars signed off by him. Those documents confirm he had some presence at Bryn Pistyll including staying there and was able to park to the rear of Bryn Pistyll when he wished to. Mr Edwards’ Witness Evidence

36. Ms Din, like Mr Edwards, undertook cross-examination and focused to a significant extent on matters that were not relevant because they did not relate to the areas of dispute about use of the Track or consent.

37. However, there were a number of elements of relevant evidence given by Mr Edwards. They can be summarised as follows, he: - (a) accepted no agreement was ever reached with Mr Walder although he and Mr Humphreys offered Mr Walder the option of a written licence in 2014; (b) spoke to Mr Walder in 2014 (more than 10 years after he acquired the property and before he spent money exploring how it could be adapted) and Mr Walder indicated he had had an accident and would not be moving into the property and would be putting it up for sale; (c) could not comment on the documentation that suggested Mr Walder was resident at Bryn Pistyll; (d) did not observe Mr Walder at Bryn Pistyll often; (e) he visited his field beside the Track once every two days during the summer when his sheep were there and 2 or 3 times over the autumn/winter period; and (f) he would travel through the village, passing Bryn Pistyll regularly when going to his feed supplier.

38. During his evidence Mr Edwards was inclined to make general or sweeping statements such as any use of the Track was with consent. When asked by me to explain the evidential basis for those statements or to explain how he was in a position to make such an assertion he was unable to do so. He was not able to support or explain his assertions about Mr Walder’s use of Bryn Pistyll and the Track during his ownership, particularly pre-2014. Mr Edwards was not able to give any detailed account of the inconclusive 2014 conversation. He gave no other detailed or specific evidence about Mr Walder or his user of Bryn Pistyll or the Track at any other point in time, nor did he give any specific evidence of any specific occasions he was aware of Bryn Pistyll or the Track being unused.

39. Mr Edwards was not able to support, or explain the apparent suggestion that Janet Boomsa-Geldard’s use of the Track was with consent. That seemed to be based on the assumption his mother would have done something to make sure that was the case. No documentary evidence supported that claim nor any oral evidence from Mr Edwards or Mr Humphreys to that effect was given.

40. I have no doubt Mr Edwards sought to give honest evidence and was honest in his efforts, however I concluded that his ability to objectively separate evidence from his firmly held belief seemed to be limited. Accordingly, I concluded I could not safely rely on self-serving general assertions unless they were independently evidenced or corroborated. Mrs Pursey’s evidence

41. Was called by Mr Edwards to give evidence about the circumstances in which she signed one of Ms Din’s pro forma statements. Mrs Pursey disavowed any knowledge about the use of the Track for vehicular access to the rear of Bryn Pistyll.

42. Mrs Pursey was clearly unhappy about being called to give evidence and blamed Ms Din for putting her in that position. She described being effectively door stepped by Ms Din and believing the statement was being obtained to support the continued use of the Track as public right of way. The contents of the very short document were plainly not a about a public pedestrian right of way, vehicular access being referred to twice. In those circumstances Mrs Pursey’s evidence failed to give a coherent explanation for her signing of that document and given her evidence that she had no knowledge either way about the matter. Mr Humphreys’ evidence

43. Mr Humphreys confirmed in his evidence that he had worked with the Edwards’ family for over 50 years, primarily as a land agent. He did not give any evidence about the grant of licences prior to Mr Walder’s ownership save to confirm he was not responsible for obtaining or formalising any earlier licences.

44. He confirmed his participation in the meeting with Mr Walder, which Mr Edwards gave evidence about, confirming it was in or around 2014. He was not asked about the date of the meeting. He confirmed that the intention was to have a conversation and reach agreement following which it would have been his duty to draw up a written licence for signature by Mr Edwards and Mr Walder. Mr Humphreys said that Mr Walder has indicated he was not going to think about the offer of a licence on terms as he was not coming to Bryn Pistyll as he was then living in Shrewsbury. He confirmed the paperwork was never drawn up as Mr Walder did not revert to Mr Humphreys or Mr Edwards. Nothing in Mr Humphreys evidence suggested that Mr Walder was not staying or residing at Bryn Pistyll in 2014, or any time before or after that.

45. Mr Humphreys confirmed there was a similar discussion with Mrs Agnew on the same day and that also did not result in any agreement about a licence. Discussion

46. Ms Din claims a right of way acquired by prescription. That means she must establish 20 years user as if by reason of a legal right to use the Track: see R (Bereford) v Sunderland City Council [2003] UKHL 60 : [2004] 1 AC 889 . That long enjoyment must have occurred continuously, openly, without force or stealth or consent. The requirement for the use to be continuous involves it being (i) uninterrupted as a user by right would be and (ii) at a sufficient level to justify a presumption that the owner of the land would be aware of the user. See Gale on Easements para 4-111, Fernance v Simpson {2003] NSWSC 121 and Campbell v Wilson (1803) 3 East 294.

47.

48. The starting point must be Mr Edwards’ acceptance there has been use of the Track for over 21 years before July 2023 to access the rear of Bryn Pistyll. Having made that concession there is no evidence to suggest that the use during Janet Boomsma-Geldard’s ownership was insufficient to support the claimed prescriptive easement. The only issue raised for that period by Mr Edwards was consent. However, there is no evidence of consent being given. If such consent was given then on the balance of probabilities there would be documentation and/or Mr Humphreys or Mr Edwards would have been able to give some evidence about its existence or reputed existence. In those circumstances I have concluded on the basis of the evidence before me no such consent was given.

49. Given the documentary evidence, the admissions in Mr Edwards’ statement of case about Mr Walder’s use of the Track and the evidence given by Mr Edwards and Mr Humphreys, I have concluded Mr Walder stayed at Bryn Pistyll during his ownership using it as a home. Whilst it may not have been his only home I am satisfied that he stayed there whenever it suited him and his lifestyle. In reaching that conclusion I have also taken account of the fact no evidence was called to suggest the property could not be occupied or lived in or that it descended into a condition that was consistent with being left unoccupied for 16 years. Mr Edwards did not cross-examine Ms Din as to the condition of the property when she viewed and then purchased it.

50. It follows I reject Mr Edwards’ attempt to suggest Mr Walder never resided at or occupied Bryn Pistyll. I note Mr Humphreys’ evidence referred to Mr Walder indicating in 2014 that he would be there less, clearly confirming that he had had some greater presence than he anticipated for the future during the preceding 11 years. I am satisfied on the balance of probabilities that he use Bryn Pistyll as a residence during his ownership. I am also satisfied, consistent with Mr Edwards’ evidence and statement in case in part that, when Mr Walder was at Bryn Pistyll he used the Track freely and openly to access the rear of his property for parking. I also find that there was never any agreed basis or license for him to do so. Although Mr Edwards offered a licence he and Mr Walder never agreed terms, no licence was granted or consent given.

51. I accept Mr Edwards and Mr Humphreys evidence that they discussed the grant of a written licence to use the Track with Mr Walder but the offer of a licence was not accepted and the licence never actually granted. It follows Mr Walder’s use before that offer was without consent as was his use after. Mr Edwards evidence of Mr Walder’s comments to him when he was selling the property suggest Mr Walder had some understanding of the acquisition of a right of way by use. Whether it was deliberate by Mr Walder or not, I have concluded he did not accept the terms offered by Mr Edwards and Mr Humphreys and continued to use the Track without consent and then to sell Bryn Pistyll to Ms Din on the basis there was a right of way/access.

52. It follows Mr Walder, like Janet Boomsma-Geldard before him and Ms Din after him used the Track for access as if entitled to do so as and when they wished. Those findings accord with Mr Edwards’ concession that there was 21 years use of the Track for vehicular access to the rear of Byrn Pistyll. There is nothing in the evidence to suggest that Mr Walder’s use was not consistent with his use of Bryn Pistyll or was conducted secretly or so as to avoid Mr Edwards appreciating it was happening. Conclusions

53. Accordingly, I find the documentary evidence and the evidence Mr Edward’s called is consistent with the statutory declarations Ms Din relies upon. I note Mr Walder’s date error and the other concerns about that evidence but having regard to the evidence as a whole I am satisfied that on the use of the Track and the absence of consent the evidence is reliable.

54. It follows Ms Din has established the necessary 20 years of use in a manner and without consent that satisfying the requirements for a prescriptive vehicular right of way, in addition to the pedestrian right of way that was effectively accepted.

55. It follows from my findings and conclusions that Mr Edwards’ objection fails and Application must be allowed. Accordingly, I will direct that the Chief Land Registrar to allow the Application.

56. As to the question of costs, it is open to either party to apply for an order that the other pay their costs from the date of the referral of this dispute to the Tribunal. I refer the parties to paragraph 9(.1(b)(i) of the Land Registration Division’s Practice Direction which provides that if the Tribunal decides to make an order about costs ordinarily the unsuccessful party will be ordered to pay the successful parties costs. In addition, the parties should note that an order for costs will relate to the costs of these tribunal proceedings and not to the cost of matters prior to the referral of this dispute to the Tribunal. My order contains directions for the time in which either party may make an application for a costs order with submissions in writing, addressing the incidence of costs and the quantum of costs and a schedule of the costs sought and, in the event of such an application, the time for a response. Dated 23 September 2025 MS M STEVENS-HOARE KC Tribunal Judge