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The Kingdom Hall Trust v Davies
Factual and Procedural Background
The Appellant appealed from a decision of the Upper Tribunal (Lands Chamber), which had upheld a First-tier Tribunal decision concerning the Respondent’s claimed pedestrian and vehicular right of way over a car park serving property in The City. [1][2][3]
The properties had been in common ownership until 1958. The land over which the way was claimed became subject to charitable trusts in 1967 and was later transferred to the Appellant, a charitable company. The tribunals found open use as of right between 24 August 1977 and 11 February 2021, but rejected earlier use. [4][5][6]
The parties agreed that, throughout the proven period of use, no competent grantor existed because the statutory charity-law requirements for granting an easement had not been satisfied. Nevertheless, the tribunals presumed a lost modern grant made between 1958 and 1967, before the use began. [7]
Legal Issues Presented
- Whether a prescriptive right of way can be acquired under the doctrine of lost modern grant where the land has belonged to a charity throughout the relevant period of use and no court order or Charity Commission permission authorised a grant. [1]
- Whether a fictional grant may be presumed before the commencement of the use relied upon, during a period when a competent grantor existed. [8][9]
- Whether use against an incompetent grantor can found, or contribute to, a prescriptive claim. [10][11]
Arguments of the Parties
Appellant's Arguments
- Under the broad view, use against a servient owner lacking capacity to grant the easement cannot found a presumption of lost grant; such use would not count towards the prescription period. [10]
- Under the narrow view, the presumed grant and the relevant use are interlinked, so the grant cannot predate the commencement of the use. Because the use began while the land was charitable property, no grant could be presumed. [11]
Respondent's Arguments
- The Respondent supported the decisions and reasoning of the tribunals. [12]
- The Respondent argued that the period between 1958 and 1967 provided a “window” in which a competent grantor existed. The Court rejected that distinction because no relevant use occurred during that period. [13]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Sunningwell Parish Council) v Oxfordshire County Council | Prescription prevents disturbance of long-established de facto enjoyment. | Explained the purpose of prescription and the lost-grant doctrine. [14][15] |
| Phillips v Halliday | Long possession may justify presuming a lawful origin where one was possible. | Considered as part of the general rationale for prescription. [16] |
| Dalton v Angus | Prescription rests on acquiescence, requiring knowledge, power to prevent the use, and failure to exercise that power. | Supported the conclusion that acquiescence and grant-capacity are interconnected. [17][18][19][20] |
| Daniel v North | A presumption of grant requires use against a person capable of making the grant. | Supported the focus on the legal capacity of the servient owner during the relevant use. [21][22][23][24] |
| Barker v Richardson | A grant by a person lacking power to bind successors is invalid. | Demonstrated that incapacity during the relevant period prevents acquisition of an easement. [25][26][27][24] |
| Bright v Walker | Use against a limited interest does not affect the fee simple. | Supported the distinction between use against a limited owner and use against the fee simple owner. [28] |
| Roberts v James | No prescriptive right arises where, throughout the period of use, no person could make the use lawful. | Considered inconsistent with presuming a grant before the use began and treated as particularly significant authority against the tribunals’ approach. [29][30][31][32][24] |
| Pugh v Savage | A tenancy arising after the commencement of use does not necessarily prevent acquisition of an easement. | Supported the importance of the legal status of the servient owner when use begins and left unresolved a broader issue concerning later incapacity. [33][34][24][35] |
| Cross v Lewis | A distinction may be drawn between incapacity existing when use begins and incapacity arising later. | Helped explain why the Court did not decide the broader issue concerning use beginning against a competent grantor. [33][35] |
| Williams v Sandy Lane (Chester) Ltd | Refined the principle stated in Pugh v Savage. | The refinement was said not to directly affect the issue in this appeal. [36][37] |
| Rochdale Canal Co v Radcliffe | Use cannot establish an easement where the grant would have been ultra vires. | Supported the rule that a grant must be capable of being lawfully made. [38][39][40][41] |
| Staffordshire and Worcestershire Canal Navigation v Birmingham Canal Navigations | Length of use cannot create a right where an express grant would have been ultra vires. | Applied as authority that a fictional grant cannot be presumed where statutory powers do not permit the grant. [42][43][44][45] |
| Neaverson v Peterborough Rural District Council | A lost grant cannot be presumed if it could not have had a legal origin. | Supported refusal of a claim contrary to an absolute statutory prohibition. [46][47][48] |
| Oakley v Boston | Required statutory consent cannot be presumed without evidence supporting that consent. | Applied by analogy because no Charity Commission consent or court order could be presumed. [49][50][51][52][13][53] |
| Housden v Conservators of Wimbledon Common | No fictional grant can be presumed where an express grant would exceed statutory powers. | Reinforced the statutory-capacity principle. [45][54] |
| Angus v Dalton | Considered in relation to the presumption of lost grant after long enjoyment. | The Court held that it did not decide whether a grant could predate the use relied upon. [55][56][57][58][32] |
| Receiver for the Metropolitan Police District v Croydon Corporation | General judicial statements must be read in the context of the facts decided. | Used to limit the literal reach of the formulation in Tehidy Minerals. [59] |
| Quinn v Leathem | A case is authority only for what it actually decides. | Supported treating the wider statement in Tehidy Minerals as obiter. [60][61] |
| Palmer v Guadagni | Particulars may be required concerning the date and legal circumstances of an alleged lost grant. | The pleading decision supported examining whether a competent grantor existed during the period of use. [62][63] |
| Tremayne v English Clays Lovering Pochin & Co Ltd | Particulars may identify dates on which statutory restrictions affected an alleged grant. | Provided further support for focusing on legal capacity during the proven use. [64] |
| Tehidy Minerals Ltd v Norman | Long uninterrupted use may justify a presumed grant made before the end of the minimum prescriptive period. | The Court held that the relevant grant in that case fell within the period of use; the wider interpretation adopted below was obiter and expressed too broadly. [65][66][67][68][32][69][70] |
| Bakewell Management Ltd v Brandwood | Cited for its treatment of Tehidy Minerals. | The Court noted that a material passage from Tehidy Minerals had been omitted in the quotation relied upon. [58] |
| Smith v Brudenell-Bruce | Considered the timing of a presumed grant in relation to actual use. | Supported the Court’s conclusion that the relevant period is tied to proven use. [24] |
| Halliday v Phillips | A lost faculty may be presumed despite an initially defective origin where a later validating event is possible. | Supported the view that a presumed legal origin may arise after use begins, not before any use exists. [71][72][73][74][75] |
| A-G v Horner (No 2) | The presumed legal origin must correspond to the essential features of the proved use. | Supported the requirement of a link between the use and the presumed grant. [76][77] |
| Goodman v Saltash Corporation | The whole character and conditions of longstanding use should be considered. | Cited within A-G v Horner (No 2) in support of reconstructing the legal origin from the proved usage. [76] |
| Wheaton v Maple & Co | A grant cannot predate the existence of the use or subject requiring protection. | Supported the conclusion that the presumed grant must be connected to the use relied upon. [78][79][80][81] |
| Barton v Church Commissioners for England | Acquiescence by an owner capable of making the grant lies at the root of prescription. | Supported the conclusion that capacity and acquiescence are intertwined. [82][83] |
| China Field Ltd v Appeal Tribunal (Buildings) | The presumption may be rebutted by proof that the servient owner was incapable of granting throughout the period of use. | Supported the Court’s formulation of the relevant period. [84][85] |
| R (Newhaven Port & Properties Ltd) v East Sussex CC | The capacity of the servient owner is relevant to prescriptive acquisition. | Considered in relation to the unresolved question of use beginning against a competent grantor and continuing against an incompetent one. [86][54][87][35] |
Court's Reasoning and Analysis
The Court treated prescription as founded on acquiescence: the servient owner must have knowledge of the use, power to stop it or sue, and must refrain from doing so. A prescriptive right therefore depends on both use and a person capable of granting the right. [17][19][88][83]
The authorities concerning limited interests, statutory restrictions and required consents showed that a right cannot arise where no valid grant could have been made. The Court rejected the distinction between a “competent grantor” rule and a separate “user against the fee simple” rule, because the limited or restricted legal interest was itself the reason for incapacity. [89][38][42][46][49][45]
The Court interpreted Tehidy Minerals in the context of its facts. In that case, the presumed grants fell within the period for which use had been established. The Court held that the case did not authorise a grant to be presumed at a much earlier time when there was no use to which the owner could object or in which the owner could acquiesce. [90][66][67][68]
The Court concluded that the relevant passage in Tehidy Minerals was obiter, unsupported by earlier authority in the form relied upon, inconsistent with authorities including Roberts v James, and inconsistent with the acquiescence principle underlying lost modern grant. [32][91][69]
The lost-grant doctrine is retrospective and arises from use as of right against a competent grantor. It is intended to justify continuation of long use, not to create a fictional grant at a time when there was no relevant use. Because no use occurred while a competent grantor existed between 1958 and 1967, there was no foundation for presuming a grant during that period. [78][92][91][70]
The Court left open whether use beginning against a competent grantor but continuing against an incompetent grantor can support a prescriptive claim, because that issue was unnecessary to decide. [93][87][35]
Holding and Implications
APPEAL ALLOWED. The Court held that, on the arguments presented, a fictional grant could not be presumed before the relevant use began where there had been no enjoyment against a competent grantor. [94][95][96]
The direct effect was that the tribunals’ decisions upholding the claimed prescriptive right could not stand on the reasoning adopted. The Court did not decide the separate question of use beginning against a competent grantor and continuing against an incompetent grantor. [70][35]
No new broader precedent was stated beyond the Court’s interpretation of the existing lost-modern-grant authorities.
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