Background
Peter Robert Davies claimed a pedestrian and vehicular right of way over the car park behind the Telford Kingdom Hall of Jehovah’s Witnesses for the benefit of his property, Pleasington. The two properties remained in common ownership until Pleasington was sold in 1958. The Kingdom Hall land became subject to charitable trusts in 1967 and was later transferred to the Kingdom Hall Trust.
The First-tier Tribunal found that Davies and his predecessors had used the route openly and as of right from August 1977 until February 2021, but rejected any claim of earlier use. Throughout that proven period, statutory restrictions prevented the charity from granting the easement without the required court order or regulatory consent, neither of which existed or was presumed. Nevertheless, both the First-tier Tribunal and Upper Tribunal upheld the claim by presuming a lost grant made between 1958 and 1967, before the land became charity property and about a decade before the proven use began.
The Court’s Holding
The Court of Appeal unanimously allowed the Kingdom Hall Trust’s appeal. It held that a lost modern grant cannot be presumed where no competent grantor existed throughout the entire period of use relied upon. The doctrine rests on a competent landowner’s acquiescence in use as of right; a grant cannot be projected backward to an earlier period when the alleged use had not begun and there was consequently nothing in which the earlier owner could have acquiesced.
The Court held that language in Tehidy Minerals Ltd v Norman suggesting that a grant might be presumed at any time before the prescriptive period was obiter and, if read literally as the tribunals had read it, too broad. Because there had been no qualifying enjoyment while the servient land had an owner capable of granting the right, Davies had no prescriptive easement. The Court left open the different question whether use beginning against a competent grantor can continue to count after the land passes to an owner lacking capacity to grant.
Key Takeaways
- A lost modern grant requires use as of right against an owner competent to grant the claimed easement.
- A court cannot support later use by inventing a grant from an earlier capable owner when no relevant use occurred during that owner’s tenure.
- Open and uninterrupted use for almost half a century did not establish the right because the charity lacked capacity to grant it throughout the proven period of use.
Why It Matters
The decision clarifies the relationship between acquiescence and legal capacity in claims based on lost modern grant. Long use alone is insufficient: the use must overlap with a period in which a servient owner could lawfully have granted the asserted right.
The ruling is particularly important for land held by charities and other bodies subject to statutory limits on dispositions. It prevents claimants from avoiding those restrictions by locating a fictional grant in a period before both the restrictions and the relevant use began.