1. Introduction
This appeal concerned the limits of acquiring an easement through long use under the doctrine of lost modern grant. The respondent homeowner claimed pedestrian and vehicular access across a car park belonging to The Kingdom Hall Trust. Although the route had been used openly and as of right for more than 43 years, the land had been held on charitable trusts throughout that period.
The decisive question was whether the court could overcome the charity’s accepted lack of capacity to grant the easement by presuming a grant during an earlier period of private ownership, approximately ten years before the proven use began.
The Court of Appeal unanimously held that it could not. The fictional grant must be connected to the use from which the claimed right arises. Where no competent grantor existed throughout the whole period of proven use, an earlier owner’s theoretical ability to grant an easement cannot supply the missing legal foundation.
The judgment also limits an influential formulation in Tehidy Minerals Ltd v Norman [1971] 2 QB 528. It does not, however, decide whether use beginning against a competent grantor can continue to count after ownership passes to someone lacking the necessary capacity.
2. Background and Statutory Context
The relevant chronology
| Date or period |
Legal significance |
| Before 10 February 1958 |
The respondent’s property and the land subsequently occupied by Kingdom Hall were in common freehold ownership. |
| 10 February 1958 |
The respondent’s property was sold separately. This marked the beginning of the potential period in which an easement between the separately owned properties could have been granted. |
| 17 July 1967 |
The Kingdom Hall land was conveyed to trustees upon express charitable trusts for a congregation of Jehovah’s Witnesses. |
| 24 August 1977–11 February 2021 |
The First-tier Tribunal found open use of the claimed route as of right by the respondent and his predecessors. Earlier use was not established. |
| 1997 and 2020 |
Changes in trusteeship and corporate ownership occurred, but the land remained held on charitable trusts. |
Restrictions on disposing of charity land
Section 29 of the Charities Act 1960 prohibited relevant disposals of charity land without a court order or the Charity Commissioners’ consent. It was common ground that granting an easement, including the fictional grant contemplated by prescription, fell within that restriction.
The Charities Act 1992 subsequently altered the regime. It extended controls to all charity land while allowing certain disposals without court or Charity Commission approval where specified safeguards were followed, including professional advice and consideration of the charity’s interests. The current provisions are contained in the Charities Act 2011, as amended by the Charities Act 2022.
Importantly, the appeal did not determine the detailed operation of each successive statutory regime. It proceeded on the agreed assumption that there had been no competent grantor throughout the proven period of use. Neither a lost court order nor a lost Charity Commission consent was advanced as a means of validating a presumed grant.
The decision therefore should not be read as establishing that charitable ownership invariably makes land immune from prescription. The particular statutory restrictions, available powers and arguments about authorisation remain important.
3. The Tribunals’ Decisions and the Appeal
The First-tier Tribunal accepted that the respondent had established the necessary quality and duration of use. It also accepted that no competent grantor existed after the land became charity land in 1967. Nevertheless, it presumed a grant between 1958 and 1967, when the properties were separately owned but the servient land had not yet become charitable property.
The Upper Tribunal upheld that approach in [2025] UKUT 294 (LC). It distinguished between:
- the requirement that use operate against the freehold interest; and
- the requirement that there be a person legally capable of granting the claimed right.
On its analysis, the capable grantor could belong to an earlier period than the use relied upon. Its central proposition was that “the user relied upon need not be user against a competent grantor”.
The Court of Appeal rejected that separation. The capacity to grant and the acquiescence supporting prescription are connected. A previous owner cannot acquiesce in use that had not yet begun.
The Trust advanced two arguments:
- The broad argument: periods of use against an owner lacking capacity should simply be excluded from the prescriptive calculation.
- The narrow argument: a grant cannot be presumed before the use giving rise to the presumption began.
The appeal succeeded on the narrow argument. Lord Justice Lewison expressly left the broader proposition unresolved. Lords Justice Males and Miles agreed that the appeal should be allowed.
4. The Court’s Legal Reasoning
A. Prescription protects established enjoyment, but requires a possible lawful origin
The starting point was the policy of protecting long-established factual enjoyment. Prescription allows settled patterns of land use to become legally secure rather than remain indefinitely vulnerable to challenge.
That policy does not authorise courts to presume a legally impossible transaction. Lost modern grant supplies a fictional deed where the law recognises the necessary foundation for doing so. It does not dispense with the grantor’s legal capacity.
The judgment consequently distinguishes two propositions:
- Evidence that no grant actually occurred does not ordinarily defeat the legal fiction.
- Evidence that no legally effective grant could have occurred during the relevant use does defeat it.
The first concerns historical fact; the second concerns legal possibility.
B. Acquiescence and capacity must relate to the same use
Acquiescence lies at the root of prescription. It involves an owner’s knowledge, or relevant means of knowledge, of the use, an ability to resist it, and a failure to do so.
However, an ability to stop trespass is not itself equivalent to an ability to grant a permanent easement. A tenant for life, statutory body or charity trustee may be able to object to use while lacking the power to confer the enduring right claimed.
The Upper Tribunal’s approach combined the charity’s acquiescence during the actual use with a previous owner’s capacity before that use existed. The Court of Appeal held that this could not establish the required foundation. As Lord Justice Lewison explained at paragraph 76:
“the acquiescence and the capacity to grant are intertwined.”
The earlier private owner had neither permitted nor tolerated the proven use: there was no relevant use at that time.
C. The presumed grant must be anchored in proven enjoyment
The judgment does not require every presumed grant to be fixed to the first day of use. A grant may be presumed during an established period of enjoyment, where the requirements for prescription are otherwise satisfied.
The prohibited step is different: moving backwards beyond the proven use to locate a historical owner with capacity, when nobody capable of granting the right existed throughout the actual use relied upon.
The distinction between the beginning of all proven use and the beginning of a minimum 20-year period was especially important. A sufficiently long history of use may allow a presumed grant during its earlier years, before the minimum qualifying period. That does not justify a grant before any proven use at all.
D. The controlling rule
At paragraph 81, Lord Justice Lewison stated:
“If there is no competent grantor during the whole period in which use as of right is established, a fictional grant of the right cannot be presumed.”
This is the central holding. Lost modern grant retrospectively supplies a lawful explanation for established use; it does not permit an unrestricted reconstruction of history disconnected from that use.
5. Precedents Cited and Their Influence
A. The policy and foundation of prescription
R (Sunningwell Parish Council) v Oxfordshire County Council [2000] 1 AC 335
Lord Hoffmann’s explanation that legal systems need prescription to prevent disturbance of long-established factual enjoyment supplied the policy foundation. The Court of Appeal nevertheless treated that objective as operating within established legal requirements, not as an independent power to recognise rights whenever long use made refusal seem unfair.
Phillips v Halliday [1891] AC 228 and Halliday v Phillips
The judgment refers to the litigation under both of these titles. The House of Lords’ principle was that long enjoyment should be presumed to have a lawful origin if such an origin was possible.
The litigation concerned a pew associated with a mansion house. Although the churchwardens’ initial arrangement could not itself confer the right, a subsequently obtained ecclesiastical faculty could be presumed. The Court of Appeal passages discussed in the present judgment contemplated a validating event after enjoyment began. They therefore supported temporal flexibility within the history of use, not an unrelated grant before it.
Dalton v Angus (1881) 6 App Cas 740 and Angus v Dalton (1878) 4 QBD 162
This litigation established the legitimacy of the lost-modern-grant doctrine. It concerned support enjoyed by adjoining buildings and involved no incapacity of the grantor during the relevant use.
Fry J’s advice to the House of Lords identified acquiescence as prescription’s foundation. The Court of Appeal judgments distinguished proof that no grant occurred from proof that the owner lacked capacity to grant. Lord Justice Lewison read those observations as concerning the owner against whom enjoyment had actually taken place.
The House of Lords did not decide the present question: Lord Blackburn expressly noted that no issue about disability or restrictions arising from the title was before it. The case therefore could not support a general power to presume grants before proven enjoyment.
B. Limited interests and the need for a competent grantor
Daniel v North (1809) 11 East 372
A claim to light failed where the adjoining property had been tenanted during the relevant enjoyment. Lord Ellenborough CJ stated that the adverse exercise must be against someone capable of making the grant, with a probable means of knowing what occurred. The present court treated this as a general principle connecting capacity with actual use, rather than a rule confined narrowly to leasehold arrangements.
Barker v Richardson (1821) 4 B & Ald 579
The claimed right to light arose while the adjoining glebe land was held by a rector possessing only limited powers. The period after sale to a competent owner was insufficient. The court rejected the claim, concentrating on when the windows existed and the enjoyment occurred.
This was particularly relevant because an argument based on the house predating the church’s ownership had been raised. The decision did not permit unsupported retreat into earlier ownership to overcome the incapacity affecting the established use.
Bright v Walker (1834) 1 Cr M & R 211
Parke B’s statement that enjoyment during a tenancy for life does not affect the fee supported the requirement for enjoyment against an owner capable of binding the relevant enduring interest.
Roberts v James (1903) 89 LT 282
This was a particularly important authority. The claimed way crossed land held under strict settlements throughout the relevant use. The claim failed because nobody during that period could make the acquiesced-in use lawful by granting the necessary right.
The court did not presume a grant before the settlement began. Lord Justice Lewison regarded that approach as inconsistent with the tribunals’ reasoning and noted that the case had not been cited in Tehidy Minerals Ltd v Norman.
Cross v Lewis (1824) 2 B & C 686 and Pugh v Savage [1970] 2 QB 373
These authorities distinguish use beginning against a competent owner from use beginning when an existing tenancy affects the position. In Pugh v Savage, use began while the freeholder was in possession, and a later tenancy did not prevent acquisition of the easement.
They supported the importance of circumstances when use began. They also caused the court to hesitate before accepting the Trust’s broader argument that every later period involving an incapable grantor must automatically be excluded.
Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738, [2007] 1 P & CR 27
This decision refined aspects of Pugh v Savage, but Lord Justice Lewison expressly stated that the refinement did not directly affect the issue on this appeal. It was acknowledged without being treated as decisive.
Smith v Brudenell-Bruce [2002] 2 P & CR 4
Pumfrey J’s approach was cited as further support for examining capacity during the actual period of proven use, rather than searching for an earlier possible grantor.
C. Statutory restrictions and external consent
Rochdale Canal Co v Radcliffe (1852) 18 QB 287
The claimant’s use of canal water exceeded what the statutory canal company could lawfully authorise. The claim therefore failed despite the other ingredients of prescription. The case established that a fictional grant cannot overcome the limits of the supposed grantor’s statutory powers.
Staffordshire and Worcestershire Canal Navigation v Birmingham Canal Navigations (1866) LR 1 HL 254
The House of Lords similarly rejected an asserted prescriptive right where its grant would have exceeded the canal company’s powers and conflicted with its statutory responsibilities.
Lord Westbury’s reference to a right being lawfully grantable “at the beginning of, or during” the use was particularly significant. It located the relevant legal possibility within actual enjoyment and also confirmed that the fictional grant need not always precede enjoyment’s commencement.
Neaverson v Peterborough Rural District Council [1902] 1 Ch 557
More than 60 years of grazing horses and cattle could not establish a right where the governing statute permitted sheep but expressly prohibited other animals. The case illustrated the governing limit: duration cannot supply a lawful origin when the supposed grant would contradict statute.
Oakley v Boston [1976] QB 270
This was the closest authority concerning required consent. A rector could grant the claimed easement only with the Ecclesiastical Commissioners’ approval. The rector’s acquiescence did not justify presuming the Commissioners’ consent where there was no evidence that they knew of the use.
The present appeal proceeded on an accepted position derived from that decision: no missing court order or Charity Commission consent was to be presumed. The respondent’s attempt to distinguish Oakley v Boston by identifying the 1958–1967 period failed because no relevant use occurred during that period.
The judgment noted academic doubt concerning Oakley v Boston, but its correctness was not challenged. The court did not reconsider the wider circumstances in which a missing consent might properly be presumed.
The Conservators were held to possess the relevant statutory power. The court nevertheless explained that, had an express grant been beyond their powers, no fictional grant could have been presumed. This reinforced the principle that prescription cannot manufacture a grant the owner was legally unable to make.
D. The central reinterpretation of Tehidy Minerals Ltd v Norman
Both tribunals relied heavily on Tehidy Minerals Ltd v Norman [1971] 2 QB 528. That case concerned grazing rights over land separated from common ownership in January 1920. Qualifying grazing occurred for more than 20 years before government requisition in October 1941.
The court presumed grants between January 1920 and October 1921. Crucially, that window fell within the period of established use, while leaving the necessary minimum period of enjoyment.
The difficulty arose from Buckley LJ’s broader formulation referring to people who might have granted rights “at some time before the commencement of the 20-year period”. Read literally and without its factual context, that wording appeared to permit a grant before all proven use.
Lord Justice Lewison held that such a reading was:
- unnecessary to the actual decision and therefore obiter;
- unsupported by the earlier authorities;
- inconsistent with decisions including Roberts v James; and
- inconsistent with the doctrine’s foundation in acquiescence by a competent grantor.
The court preserved the decision itself. The formulation remains correct if understood as referring to a grant made while relevant use was occurring, rather than conferring a general licence to search earlier history.
Receiver for the Metropolitan Police District v Croydon Corporation [1957] 2 QB 154 and Quinn v Leathem [1901] AC 495
These cases supplied the interpretive discipline applied to Tehidy Minerals Ltd v Norman: judicial statements are not statutes, and general language must be read against the facts and questions actually decided. An apparently comprehensive summary does not bind later courts on an issue that did not arise.
Lord Justice Lewison noted that Lord Scott, when quoting the relevant passage from Tehidy Minerals Ltd v Norman, omitted the wording on which the tribunals relied. This was a supporting observation, not an independent determination of the present timing issue.
E. Pleading, proven usage and the presumed origin
Palmer v Guadagni [1906] 2 Ch 494
The court required particulars identifying whether a supposed grant preceded or followed a lease and a private Act. The Upper Tribunal viewed the decision as supportive. The Court of Appeal considered the opposite inference stronger: those particulars mattered because changes in title or statutory restrictions could affect capacity during the use relied upon.
Tremayne v English Clays Lovering Pochin & Co Ltd [1972] 1 WLR 657
Particulars were likewise required concerning the supposed timing of a right to discharge effluent, relative to successive statutes. If any remote earlier date could freely supply a fictional grant, identifying those dates would have little utility. The case supported attention to the legal conditions governing the established enjoyment.
A-G v Horner (No 2) [1913] 2 Ch 140 and Goodman v Saltash Corporation
The passage from the former, quoting the latter, emphasised that the presumed legal origin must fit the proved usage as a whole. A claimant cannot select favourable historical features and disregard inconvenient ones. This supported the rejection of a reconstruction combining capacity from one period with use from another.
Wheaton v Maple & Co [1893] 3 Ch 48
A right to light could not be presumed before the relevant houses existed, and enjoyment against a Crown tenant did not supply enjoyment against the Crown itself. The decision supplied a particularly direct illustration of why the fictional grant must relate to actual use and the correct grantor.
Morgan J’s statement that acquiescence must be that of an owner capable of making the grant, with at least the means of knowing about the use, succinctly supported the Court of Appeal’s central reasoning.
China Field Ltd v Appeal Tribunal (Buildings) [2009] 5 HKC 231
Lord Millett NPJ’s observation in the Hong Kong Court of Final Appeal distinguished an admission that no grant occurred from proof of incapacity throughout the relied-upon use. The present court cited it as persuasive confirmation of that distinction.
F. The broader question left unresolved
The Trust relied on an obiter discussion connecting prescription with the landowner’s capacity, including reference to Law Commission proposals excluding use during periods of incapacity.
Lord Justice Lewison considered that neither the authorities cited there nor the reform proposal squarely resolved a sequence in which use began against a competent owner and continued against an incapable one. The difficulties of reconciling automatic exclusion with Cross v Lewis and Pugh v Savage justified leaving that question open.
6. Scope and Limits of the Decision
The distinction between the binding holding and the unresolved wider issue is essential.
- Decided: where the grantor lacked capacity throughout all proven use, the claimant cannot escape that obstacle by presuming a grant before the use began.
- Not decided: whether every period of use against an incapable owner must be excluded where qualifying use originally began against a competent owner.
- Not decided: whether charitable ownership necessarily prevents prescription under every statutory arrangement.
- Not reconsidered: the correctness of Oakley v Boston or every possible basis for presuming external authorisation.
The court also rejected the Upper Tribunal’s sharp distinction between “user against the fee simple” and the “competent grantor” requirement. A limited estate may itself explain the inability to bind the freehold. The requirements cannot be treated as wholly independent routes around the same defect.
No injunction, costs determination or alternative access arrangement is recorded in the supplied judgment. Its stated disposition is that the appeal was allowed.
7. Practical and Wider Impact
Evidence of chronology becomes decisive
Claimants relying on lost modern grant must investigate not only how long the route was used, but who owned the servient land during that use and what powers or restrictions applied. An earlier interval of unrestricted ownership is insufficient unless connected to relevant enjoyment.
Conversely, landowners resisting prescription may need to establish incapacity across the entire proven period. The judgment makes legal impossibility, rather than merely the absence of an actual deed, the important defence.
Protection of statutory safeguards
The decision prevents the legal fiction from bypassing controls on the disposal of charity property simply by relocating the grant to a period before charitable ownership. Its reasoning is also relevant to statutory bodies and other owners whose powers are restricted, although each case requires analysis of the governing legislation.
Careful treatment of precedent
The judgment is significant beyond easements. It demonstrates how a familiar appellate formulation can be confined without rejecting the earlier decision itself. Courts must distinguish what a case actually decided from general language extending beyond its facts.
Reform remains a legislative question
Lord Justice Males acknowledged the apparent harshness of rejecting access exercised openly for almost half a century. Nevertheless, both lost modern grant and its capacity limitation remain firmly embedded in English law.
His conclusion was institutional rather than discretionary: modernisation belongs to Parliament. The Law Commission’s recommendations provide relevant context, but they are not a substitute for enacted law and did not determine the unresolved mixed-capacity question.
8. Complex Concepts Simplified
- Easement
- A legal right benefiting one property over another, such as a right to cross neighbouring land.
- Dominant and servient land
- The dominant land receives the benefit of the right; the servient land bears its burden. Here, the respondent’s property would benefit and the charity’s car park would be burdened.
- Prescription
- Acquiring a land right through sufficiently long use meeting legal requirements, rather than through a proved express grant.
- Lost modern grant
- A doctrine under which qualifying long use, ordinarily for at least 20 years, supports a fictional grant that has been lost. It does not require belief that a deed really existed.
- Use “as of right”
- Use without force, secrecy or permission. It describes the character of the use, not proof that an existing legal right already authorised it.
- Competent grantor
- A person or body legally able to confer the particular enduring right claimed, taking account of ownership, statutory powers and required authorisations.
- Acquiescence
- Tolerating known use, or use of which the relevant owner has the necessary means of knowledge, despite having power to resist it. For prescription, the connection with capacity to grant is crucial.
- Ultra vires
- Beyond a person’s or body’s legal powers. Long use cannot ordinarily justify presuming a grant that would exceed those powers.
- Obiter dictum
- A judicial observation unnecessary to deciding the case. It may be persuasive but does not carry the same binding force as the rule necessary to the decision.
- Faculty
- An ecclesiastical authorisation. The pew cases illustrate circumstances in which such an authorisation could be presumed to explain established enjoyment.
9. Conclusion
The judgment confirms that lost modern grant must remain tied to the proven use that justifies it. Where no competent grantor existed throughout that use, the court cannot invent a grant during an earlier, unused period merely because a previous owner could then have made one.
The decision narrows an overbroad reading of Tehidy Minerals Ltd v Norman, preserves statutory limits on granting land rights, and leaves open the distinct question of use that begins against a competent grantor before later incapacity arises. Long enjoyment remains important, but it cannot replace the necessary possibility of a lawful grant.