The Kingdom Hall Trust v Peter Robert Davies

This is the appeal of the Kingdom Hall Trust (“the appellant”), a charitable company limited by guarantee, from the decision of the First- tier Tribunal (Property Chamber) (Land Registration) (“the FTT”) dated 11 November 2024 under REF/2023/0430, concluding that the car park of its land at Kingdom Hall of Jehovah’s Witnesses, Plough Road, Wrockwardine Wood, Telford (TF2 7AW) was subject to a prescriptive right of way for the benefit of land at Pleasington with and without vehicles via a passageway from the rear of the property and drive/garage area to Talbot Road. Mr Davies, the respondent, and the owner of the land held to have the benefit of that right of way, cross-appeals.

The facts are fully and carefully set out in the decision of the FTT, and are not in dispute. In summary, they are as follows. Until 1958, the appellant’s land (“Kingdom Hall”) and the respondent’s land adjacent to it (“Pleasington”) were in common ownership. By a conveyance dated 10 February 1958 one Alan Edward Stewart and his mortgagees conveyed “the Bungalow” (now Pleasington) to Gertrude Mary Stewart, retaining what is now Kingdom Hall (including the car park area). After various intermediate dispositions, Kingdom Hall was conveyed to 4 named trustees of the Telford Oakengates Congregation of Jehovah’s Witnesses on 17 July 1967 as a place of worship, upon express charitable trusts. On 29 May 1997, the appellant obtained unregistered title to Kingdom Hall. Having acquired registered title to Pleasington in tranches between 2014 and 2016, on 10 February 2017 the respondent lodged a caution against first registration over Kingdom Hall. On 12 June 2020, the Congregation assigned its beneficial interest in Kingdom Hall to the appellant. On 11 February 2021, the appellant disputed the existence of the alleged right of way over the car park, and on 12 April 2022 it applied for first registration of title to Kingdom Hall free of any such right. The dispute between the parties was referred to the FTT on 28 July 2023.

Title to the two properties was therefore in common ownership until 10 February 1958; and Kingdom Hall, including its car park, has been held on charitable trusts since 17 July 1967.

The respondent, as owner of Pleasington, claimed to have the benefit of the right of way under the doctrine of lost modern grant and/or s.2 Prescription Act 1832, based on long enjoyment of the way as of right for the requisite period of 20 or 40 years since 1959.

The FTT summarised the doctrine of lost modern grant in the following way (para.50)

“By the doctrine of ‘lost modern grant’, a fictional grant of an easement is presumed to have been made at a date in the past upon proof of 20 years’ or more of the requisite use. Although a ‘legal fiction’, this doctrine covers those cases of long use where the period relied upon stops short of the “next before some suit or action” date of section 4 Prescription Act 1832, as in Healey v Hawkins [1968] 1 W.L.R. 1967 and Tehidy Minerals Limited v. Norman [1971] 2 QB 528.”

The use in question must have been open, exercised as of right, without force, secrecy or permission.

Moreover, as stated in Gale on Easements, 21^st ed., paragraph 4-105

“…as a general rule the enjoyment of an easement as against an owner of the servient tenement who is unable to dispose of the fee is not sufficient to give rise to a prescriptive title, and … the ordinary cause of such an inability arises from a deficiency of estate, as where a servient owner is tenant for life or tenant for years. The inability to dispose of the fee may, however, arise from other causes, for instance by reason of the doctrine of ultra vires or where the owner of the servient tenement is restrained from alienation.

Thus, where the owner of the servient tenement is a company whose powers of disposition are limited, and a grant of the easement by such company would be ultra vires, it seems that no prescriptive title will arise either where an easement of any kind is claimed by prescription at common law or under the doctrine of lost grant, or where an easement other than light is claimed on the ground of a 20 years’ enjoyment under s.2 of the PA 1832. The prescriptive title will not arise, because the necessary grant cannot be presumed.”

Megarry & Wade, the Law of Real Property, 10^th ed., 27-065states,

“…it is a good defence that during the entire period when the grant could have been made, there was nobody who could lawfully have made it. Thus the court has refused to presume a lost grant of a way where the land had been in strict settlement (under which there was no power to grant in fee simple) from the time when the user began, down to the time of action. When no grant could be made without some authority’s consent, the court has refused to presume that consent without evidence of the authority’s acquiescence in the user. The court has refused to presume a lost grant which would be contrary to statute or custom.”

The FTT found that there was insufficient evidence of user of the alleged right of way to support the claim in the period from 1959 to 1977, but that between 24 August 1977 and 11 February 2021 (when user became contentious) the then owner of Pleasington and others had made regular use of the alleged way with and without vehicles, as of right, so as prima facie to found a claim in prescription by lost modern grant and/or under s. 2 Prescription Act 1832 over the periods of both 20 and 40 years.

However, that was subject to two points, which have come to be called respectively “the Vires Point” and “the Date Point” in this case, and can be described in the following ways, taken from the appellant’s skeleton argument.

The Vires Point is whether it is correct that private rights cannot in general be acquired by prescription against land held by a charity, given that this entails a notional grant that would have been ultra vires the supposed grantor under the Charities Acts.

The Date Point is, if so, whether such rights can nonetheless be acquired by presuming a fictional grant that pre-dates the land’s becoming charity land.

The FTT determined, in favour of the appellant, that private rights cannot in general be acquired by prescription against land held by a charity, given that this entails a notional grant that would have been ultra vires the supposed grantor under the Charities Acts; and, in favour of the respondent, that such rights can nonetheless be acquired by presuming a fictional grant that pre-dates the land’s becoming charity land.

The appellant appeals on the Date Point. If the appellant succeeds on the Date Point, the respondent cross-appeals on the Vires Point.

As already noted, Kingdom Hall has been held as charitable land since 17 July 1967.

The FTT noted that Section 29 Charities Act 1960 imposed general restrictions on the powers of any charity in relation to land held by it for its charitable purposes. It provided as follows.

“29Restrictions on dealing with charity property

(1)

Subject to the exceptions provided for by this section, no property forming part of

the permanent endowment of a charity shall, without an order of the court or of the

Commissioners, be mortgaged or charged by way of security for the repayment of

money borrowed, nor, in the case of land in England or Wales, be sold, leased or

otherwise disposed of.

(2)

Subsection (1) above shall apply to any land which is held by or in trust for a

charity and is or has at any time been occupied for the purposes of the charity, as it

applies to land forming part of the permanent endowment of a charity; but a

transaction for which the sanction of an order under subsection (1) above is required

by virtue only of this subsection shall, notwithstanding that it is entered into without

such an order, be valid in favour of a person who (then or afterwards) in good faith

acquires an interest in or charge on the land for money or money's worth.

By reference to s. 29 Charities Act 1960 (though the point is the same under subsequent Acts), the appellant submitted that the grant of an easement over the appellant charity’s car park would have been a disposal of charity property, and so would have required an order of the Court or of the Charity Commissioners, without which any such disposition would have been void and ultra vires the charitable trustees. Since, when no grant could have been made without some authority’s consent, the court refuses to presume that consent without evidence of the authority’s acquiescence in the user, and no such evidence was available here, a grant would have been void and ultra vires, and no grant of an easement over Kingdom Hall could be presumed.

The FTT accepted (paras105-112, 118) that the grant of an easement would be a ‘disposition’ caught by the statutory restrictions.

It accepted, too (paras. 116-118, 127) that accordingly compliance with those statutory restrictions (including the need to obtain an order of the Court or the Charity Commissioners) would be required before a grant could validly be made; and, following Oakley v Boston [1976] QB 270, that such consent cannot be presumed by any court for the purposes of a prescription claim.

The respondent argued, however, that the presumed grant was saved by s.29(3)(a) Charities Act 1960. It was a transaction for which general or special authority is expressly given (without the authority being made subject to the sanction of an order) by a statutory provision contained in an Act of Parliament, namely s. 2 Prescription Act 1832, which gave authority for prescriptive easements to arise from presumed or inferred grants.

The FTT held that, while the statutory reference to a transaction might include a fictional grant of the kind in contemplation, the act did not give authorisation to charities to permit the grant by charities of easements, or the acquisition of easements against them. It considered that the respondent’s arguments rested on a “strained and impossible reading” of the subsection (paras 119-121) and contradicted the Law Commission’s view of the law in its recent review of charities law. On this basis, it determined the Vires Point in favour of the appellant.

The FTT then held, however, that as a matter of law it suffices if the presumed grant could have been made at some point in time prior to the requisite enjoyment relied upon, even if this predated the earliest occasion of the use relied upon to generate the presumption (para 138-149). At 144 it said,

“I can glean or derive no principle from the cases that the date or date range of the presumed lost grant must be fixed or limited by reference to the date of the earliest occasion of use relied upon to generate the presumption e.g. that the Court or Tribunal must presume the date of the lost grant to have immediately preceded the period of use relied upon. It is a legal fiction, but one in which the Court or Tribunal is presuming a “lost” grant which (as per the quotations above [ie Megarry & Wade, The Law of Real Property (10th ed, para. 27-065)]) “could have been made”, as Buckley LJ said [in Tehidy Minerals Limited v. Norman [1971] 2 QB 528, 552] “at some time” before commencement of the period of use. This also reflects the language used by Sir Henn Collins MR in Neaverson (above) [Neaverson v. Peterborough RDC [1902] 1 Ch. 557 [in relation to the vires/contrary to statute principle:

“The question is whether that ought to be treated as evidence of a lost grant, which might have had a legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.”

Since here the land was not in charitable ownership between 10 February 1958 and 17July 1967, the user established by the respondent beginning in 1977 could be deemed to relate back to a fictitious grant made during that earlier period, when no statutory restriction against disposals applied (146).

On this basis, the FTT determined the Date Point against the appellant.

The respondent’s appeal on the Vires Point is limited to the decision of the FTT on the effect of s.29(3)(a) Charities Act 1960. Its grounds of appeal proposed that the appellants could not assert the presumed grant was not a transaction while at the same time asserting it was a disposition; and, more importantly, that if section 29(3)(a) of the Act did not authorise lost modern grants, a charity could never be subject to a prescriptive claim, which was absurd: no commentator or authority had ever suggested as much; it cannot have been the intention of Parliament that s.29 of the Act should render charities immune from such claims by a side wind; it was anomalous that, out of all potential defendants, only charities should be so exempt; and it rendered the regime of making application for consent under section 29 unworkable.

However, this Tribunal considers that the FTT’s decision on the Vires Point was correct, and that the respondent’s argument did indeed rest on a strained and impossible reading of the subsection.

Section 2 Prescription Act 1832 is of course a statutory provision. Let it be assumed, for the sake of argument, that a fictitious lost modern grant is capable of amounting to a ‘transaction’ within the meaning of s.29 Charities Act 1960. There is nothing in section 2 Prescription Act 1832 which expressly gives authority to charities, or anyone, to grant an easement; let alone to acquiesce in conduct which, in the relevant circumstances, might be taken to give rise to a lost modern grant. In fact, that provision confers no authority at all: it merely provides that no claim which may lawfully be made to an easement, when it been enjoyed as of right for 20 years, shall be defeated only by showing that it was first so enjoyed at any time prior to such period of 20 years. Moreover, Housden v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200 at [64-66] is authority for the proposition that both the 20 year period and the 40 year period give rise to easements arising from the common law presumption of a grant, and which are not creations of statute.

The FTT noted that the Law Commission observed (at 7.13 footnote 421 of its Report on the topic) that the references to statutory provisions contained in or having effect under an Act of Parliament include disposals made pursuant to a statutory compulsory purchase order; or transactions pursuant to specific statutes giving powers of disposal. That must be right. They cannot be taken to extend to the effects of the 1832 Act.

As to the submission that the decision of the FTT would render the position of charities anomalous, there is no anomaly. The position of charities is special, but not unique. Similar protection is enjoyed by, for example, universities, the Church of England, and other statutory corporations whose powers of disposition are limited in the interests of a public good.

It is not inconsistent with the policy of section 29 Charities Act 1960 that charities should have a degree of protection from the effects of acquiescence in long user so far as they would otherwise give rise to the presumption of a grant. The effect of presuming a lost modern grant is to sidestep consideration of whether such a transaction, if it ever actually occurred, would be in the interests of the charity. This is not a case of wrongly introducing a special protection by a side-wind.

Accordingly, this Tribunal concludes that the FTT was right to conclude that s. 29(3)(a) Charities Act 1960 did not prevent the doctrine requiring a competent grantor from ruling out the inference of such a grant by a charity.

The FTT concluded that that, as a matter of law, it suffices if a presumed grant could have been made at some point in time prior to the requisite enjoyment relied upon, even if this predated the earliest occasion of the use relied upon to generate the presumption.

The appellant contends this is wrong as a matter of law and that it ought to succeed on the Date Point on one of two available views, one broad, one narrow.

The broad view for which the appellant contended was that user against a charity is never prescriptive user, so that it can never found the presumption of a lost grant, and the question of whether there was ever a competent grantor never arises. This is because acquiescence is the essential foundation of the doctrine of prescription, and acquiescence cannot be established, because neither the Court nor the Charity Commission have acquiesced, and the acquiescence of at least one of them is required.

However, the foundation of prescription is acquiescence in long user as of right, not acquiescence in the fictitious grant. Such user is obviously not itself a disposition or a transaction, though it may found the presumption of a grant. There is nothing in s.29 Charities Act 1960 to prohibit such acquiescence or render it ‘void’ in some sense, as Counsel for the appellant rightly accepted in the course of submissions. For example, the question whether Parliament can have contemplated that such acquiescence was caught by s.29 (1) Charities Act 1960 can be tested by considering how the section provides for capacity to be acquired when lacking. But the answer is absurd: it would involve the charity’s applying to the Court or the Commissioners for consent to its own acquiescence.

Counsel submitted instead that what caused the charity to lack capacity to acquiesce in the user was that the user and acquiescence were explicable only by a lost modern grant. But that is circular: it is merely to assert the conclusion, that there is something objectionable in presuming a lost modern grant against a charity. Or it is to conflate the user with the grant, when the doctrine of prescription is to presume the latter from the former, not to equate them.

Oakley v Boston [1976] QB 270 was a case in which the supposed grantor of a lost modern grant had power to grant an easement over glebe land only with the approval of the Ecclesiastical Commissioners. There was no evidence of any such approval. Their approval could not be presumed without (at least) evidence that they knew of the acquiescence in wrongful user, which there was not. Accordingly, no grant could be presumed. But it was not a question of the Ecclesiastical Commissioners acquiescing in the user, but of the possibility of their being taken to have consented to the notional grant by reason of their knowledge of the owner’s acquiescence in the user. Had they been found to have consented to a notional grant, the user might have formed the basis for the presumption of a lost grant. This implies that absent the consent of the Charity Commission to a presumed grant (which consent may perhaps itself be presumed on the basis of evidence that the Commission at least knew of and assented to the charity’s acquiescence in the user) a grant may not be presumed.

Accordingly, it is not that user against a charity without the consent of the Charity Commission is never capable of being prescriptive user, it is that such user can never found the presumption of a lost grant if there is no capable grantor. While the charity may not be a capable grantor, the question remains open whether there may not be another grantor who is capable.

The appellant argues that R (Newhaven Port & Properties Ltd) v East Sussex CC [2025] UKSC 7 supports the broad view in the following passage at [79].

“Similarly, in the English law of private easements (other than access of light) the capacity of the owner of the potential servient tenement to grant an easement is relevant to prescriptive acquisition. As prescription is based on the fiction of a grant, a landowner who could not have granted the claimed easement cannot suffer prescription: see Sunningwell, per Lord Hoffmann at pp 349G—351C in relation to the common law; Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172, paras 43 and 76, per Mummery and Carnwath LJJ respectively, in relation to the 1832 Act; Megarry & Wade op cit at para 28-065; Gale on Easements, 19th ed (2012), paras 4.88—4.91. The Law Commission in its 2011 report, Making Land Work: Easements, Covenants and Profits a Prendre (Law Com No 327) (HC 1067) while advocating the removal of the fiction of grant, recommended (at para 3.168) that the use of land cannot be qualifying use, for the purposes of prescription, at any time when the land is in the freehold ownership of a person or body who is not competent to grant an easement over it.”

However, this Tribunal does not understand either this passage, or the case law to which it refers, to assert that the present state of the law is that user against a charity, or any potentially servient owner which lacks capacity to grant an easement, can never found the presumption of a lost grant. The report of the Law Commission was not making the distinctions for which the appellant now contends: see 3.101; 3.165-167.

Accordingly, the Tribunal rejects the broad view for which the appellant contends.

The narrow view proposed by the appellant is that if the person who is the servient owner at the start of the prescriptive user period is legally incompetent, then a lost modern grant cannot be presumed from that user; while if they are competent, they fall to be treated as the grantor. Here, the legally incompetent charity was the servient owner at the start of the user period, so a grant by it cannot be presumed. The question of a prior grant by some other competent grantor does not arise.

Although the submissions of both counsel before me started with a consideration of the legal textbooks, the Tribunal prefers to start with a review of the cases to which it was referred, and to do so in chronological order.

In Barker v Richardson (1821) 106 ER 1048, a case preceding the Prescription Act 1832, the plaintiff had complained of the defendant’s interference with his right of light, but the defendant disputed that he had one. The plaintiff established 20 years’ user, but for the first 14 years of that, the defendant’s land had been glebe land, held by a rector who only had the powers of a tenant for life. He was not, therefore, a capable grantor for the purposes of prescription. The court held that in that case the grant, if presumed, must have been made by a tenant for life, who was not a capable grantor, and concluded that there was no right to light. It did not do so, however, on the footing that the rector was the only potential grantor because he had held the land at the beginning of the 20 year period; but on the footing that there was no evidence that the window was there before the adjoining land had been granted to the church.

Counsel for the appellant submitted that if the FTT had been right on the date point, the plaintiff in Barker v Richardson must have succeeded if the point had been taken that there must surely have been owner-occupation in fee simple of the defendant’s land at some earlier time; and that since the point cannot have been overlooked by the Court if it was a good one, it must have been a bad one.

However, this was a case in which there was no evidence of user “before the adjoining land [that is, the defendant’s land] had been granted to the church, nor was that point ever made.” In the circumstances, while the report can be read as suggesting that the court was proceeding on the basis that the relevant grantor was the person against whom user had been exercised, it is at least equally possible to read it as suggesting that the properties were in common ownership until the defendant’s land was granted to the church, so that there could be no competent grantor at any time. At any rate, the point was not raised. This case is therefore not an indication that the FTT was wrong on the Date Point.

TheRochdale Canal Company v Radcliffe (1852) 18 QB 287 was a case where a prescriptive right to draw water from a canal was asserted. The argument that the canal company might have granted such a right failed: it would have been ultra vires the company under the relevant Canal Act. Although one of the judges, Coleridge J, said that “if the acts of user would not be legal, the grant cannot be inferred from them,” the point was not the legality of the user but the impossibility of a grant. There was, of course, no question of a competent grantor preceding the Act under which the canal was constructed. The case does not assist.

The appellant relied on Staffordshire and Worcestershire Canal Navigation (Proprietors of) v Proprietors of Birmingham Canal Navigations (1866) LR1 HL 254 in relation to the Date Point. As the appellant’s skeleton argument states, the matter concerned the use of a connecting canal. A dispute arose whereby the respondent company proposed to construct machinery to pump back water which would affect water incidentally flowing to the appellant's canal, which the appellant alleged would convene a right alleged to be vested in it by user and prescription. The House held that the alleged right could not have any foundation in grant because such a grant by the respondent would exceed the powers over the canal afforded to the respondent by statute. In so holding the following statements were made.

This is said to support the proposition that the notional grantor is the servient owner at the beginning of, or during, the period of user relied on. However, this was, again, a canal case, and it is not at all clear from the report that there was any possibility of a capable grantor existing at any time before the relevant statutory prohibition. It was the respondent company or nothing. Moreover, the question of the time at which a grant might theoretically have been made was is not in issue. It does not assist the appellant on the Date Point.

The leading case on prescription is, of course, Dalton v Angus & Co (1881) 6 App.Cas. 740. It was the appeal reported at (1878) 4 QBD 162, however, which considered the question of what evidence might rebut the presumption of a lost modern grant. Among the circumstances were the incompetence of the grantor to make a grant. Thesiger LJ held (at 175) that

“These cases, therefore, as direct authorities go no further than to shew that a legal incompetence as regards the owner of the servient tenement to grant an easement, or a physical incapacity of being obstructed as regards the easement itself, or an uncertainty and secrecy of enjoyment putting it out of the category of all ordinary known easements, will prevent the presumption of an easement by lost grant…”

Similarly, Cotton LJ held ( at186) that

“The presumption may be rebutted by shewing that the owner of the servient tenement was not capable of making a grant.”

This does not identify any particular date, or any particular servient owner. At page 187 he applies the principle to the facts of the case, raising the question of evidence that ‘the adjoining owner’ was incapable of making a grant, but not identifying any particular owner or time. The case simply does not address the Date Point.

The appellant raises an argument in relation to the Date Point, however, on the basis of the observations of the Court in Dalton v Angus & Co (1881) 6 App.Cas. 740 on the nature of prescription, and its basis in acquiescence or estoppel. In that case, the judgment of Fry J. contained the following passage at p771.

“[T]he whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingredients acquiescence consists.

In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, first, the doing of some act by one man upon the land of another; secondly, the absence of right to do that act in the person doing it; thirdly, the knowledge of the person affected by it that the act is done; fourthly, the power of the person affected by the act to prevent such act either by act on his part or by action in the courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the courts to say that he shall not afterwards interfere to stop the act being done.”[emphasis supplied]

And he relies on the passage of Thesiger LJ’s judgment in the 1878 case where he states (at 172)

“… the presumption cannot be rebutted by mere proof by the owner of the servient tenement, that no grant was in fact made either at the commencement or during the continuance of the enjoyment. I am not aware that this proposition has been in terms directly decided, but it is almost impossible to suppose that among the numerous cases in which easements have been held by the courts to have been acquired by uninterrupted user for 20 years only, there must not have been many in which the owner of the servient tenement at the time when the period commenced was alive when the action was tried to contradict, if such evidence had been admissible, the fact of a grant; and if such evidence were admissible, it is almost inconceivable that in the numerous cases, in which questions of easements have been discussed, no trace of an opinion to that effect should be found in the observations of the judges.

The correct view upon this point I take to be, that the presumption of acquiescence and the fiction of an agreement or grant deduced therefrom in a case, where enjoyment of an easement has been for a sufficient period uninterrupted, is in the nature of an estoppel by conduct, which, while it is not conclusive so far as to prevent denial or explanation of the conduct, presents a bar to any simple denial of the fact, which is merely the legal inference drawn from the conduct.”

The references, at the beginning of the latter passage, to proof that no grant was in fact made ‘at the commencement of or during the continuance’ of the enjoyment, cannot be taken to mean that what the learned judge was dismissing was the possibility that such evidence could negate a finding of a lost modern grant at the same time or times; and thus that he considered that a lost grant could only be presumed, if at all, as having taken place at those times: a lost modern grant supposed to have occurred during the minimum period of user required to found the presumption of such a grant makes no sense: if a grant was supposed to have taken place at that time, not enough time would remain on the basis of which to presume that it had come into existence at all. This passage, therefore, cannot assist with the Date Point. As to the passage starting “The correct view..,” it is worth noting that the learned judge does not distinguish between what he calls the presumption of acquiescence on the one hand and the fiction of a grant on the other, but refers to them without distinction as being in the nature of an estoppel by conduct. Moreover, it is not that he is saying that the doctrine operates by virtue of estoppel, rather than drawing an analogy. He is not addressing the Date Point. The context of that passage is a consideration of whether the notional grant was being inferred as a matter of fact or was being presumed, and, if the latter, by what evidence the presumption might be rebutted.

On the basis of these passages, however, the appellant’s argument is that in the present case the use relied on cannot be said to have been with the knowledge of the respondent’s pre-1967 predecessors in title (the use was not found to have started until 1977, long after they were gone); who necessarily cannot have had the power to prevent such action; and, most importantly, cannot be said to have abstained from any such interference – having never effectively been in a position to do so. On the footing that they cannot be said to have acquiesced in the user: the essential prerequisite of acquiescence, on which all prescription must rest, was absent during that whole period, for want of use on the part of the would-be dominant owner. And, similarly, there can have been no estoppel against them.

However, there is no requirement for an estoppel against the supposed maker of the fictitious grant. The estoppel (to use the language of estoppel) is against the person who can no longer deny the lawfulness of the use, and his successors. It arises from the acquiescence, obviously, of the person who acquiesced, who may or may not be the same person, and who may or may not be the supposed maker of the fictitious grant. It does not follow from anything in Dalton v Angus that it is the legal competence of the person who is the servient owner at the start of the prescriptive user period which counts, rather than whether a competent grantor can be found at all. The Tribunal is not persuaded by this argument, therefore.

Neaverson v Peterborough RDC [1902] 1 Ch. 557 is authority for the proposition that a lost grant cannot be presumed where such a grant would have been in contravention of a statute. In that case, the plaintiff owned a farm, and the defendants were, firstly, the rural District Council and the surveyors of highways for the parish and, secondly, the man to whom they had let the herbage of Moor Road, a private road set out by an 1822 award made under an Inclosure Act of 1812, and which bounded the farm. The plaintiff sought an injunction restraining them from grazing cattle contrary to that Act: the award had permitted the grazing of sheep, but since 1846 the council had let it for the pasturage of cattle and horses as well. At first instance the court held that an enlargement of the right to depasture the road by grant or release from the owners of the soil of the road, who were the owners of the allotments under the provisions of the Act and award, ought to be presumed on the basis of long enjoyment.

The plaintiff appealed on the basis that such a grant could not legally have been made, given the terms of the Act and award, which restricted the pasturage to sheep: no one could have made a grant, because the restriction to sheep was made in the public interest. The Court of Appeal held that,

“The question is whether [the long user] ought to be treated as evidence of a lost grant, which might have had legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.”

The Court of Appeal concluded that in the face of the provision in the award, it would not be competent for anyone to grant a right to pasture cattle and horses, because it would be distinctly contrary to the purpose of the Act. The Master of the Rolls continued, at 571,

“It appears to me that the test, by which to determine whether the Court ought to presume a lost grant in this case, is to consider whether, immediately after the making of the award, the owners of the allotments, or any other persons, could legally have met together and agreed to grant the surveyor of highways the right to depasture cattle and horses on the roads. I think that such a grant would have been directly contrary to statutory provisions…” [emphasis supplied]

The appellant submits that the court was concerned only with use after the issue of grantor incapacity arose, not before; and that this supports it on the Date Point. Moreover, it is submitted, if it had been open to the court, on the basis of long user at a time when no grantor was competent to make a grant, to presume a grant at a time predating the 1812 Act (or perhaps the 1822 award), it would surely have done so.

The submission is misconceived. On the facts of the case, the road which was supposedly the subject matter of the grant had not come into existence until after the Act. It would make no sense to presume a grant of rights in relation to a road which did not exist; nor yet a grant of rights extending rights created by the award, but predating the award. The question of doing so did not arise. The FTT was right to say that there was nothing in Neaverson from which to glean the proposition that the Court or Tribunal must presume the date of the lost grant to have immediately preceded the period of use.

The first instance case of Palmer v Guadagni [1906] 2 Ch 494 was a case confirming that, under modern practice (that is, since 1852), lost modern grant might be pleaded without stating either the date of or the parties to the grant. However, particulars of whether such grant was alleged to have occurred in relation to a particular release and private Act were ordered on the ground that, as in Neaverson, it might be shown that there was no one capable of making a grant. The case makes it clear that it would be otherwise perfectly acceptable to plead a grant on a general statement that some former owner of the servient tenement granted the easement to some former owner of the dominant tenement. That is inconsistent with a restriction on the timing of any supposed grant such as that contended for by the appellant.

In Tehidy Minerals Ltd v Norman [1971] 2 QB 528 the question was identified (at 547) to be whether proof of user from 19 January 1920 (when the dominant and servient tenements ceased to be held in common and before which no grant could have been made) to 6 October 1941 (when the servient tenement was requisitioned, after which there was no capable grantor), a period of 21 years, 8 ½ months, could found a presumption of lost modern grant made after 19 January 1920 but before 6 October 1921 (being 20 years before 6 October 1941). It was answered in the affirmative. Buckley LJ expressed no qualms about presuming a grant during the period of user, so long as it was before the start of the minimum period of user capable of founding a prescriptive right. He defined the period within which such a grant might be presumed to have been made as extending 1 year 8 ½ months before the start of that minimum period of user. In other words, he assumed that there might be a gap in time before the supposed date of grant and the start of the minimum period of user relied on to establish the grant. He did not consider that any notional grant had to be made either immediately before the relevant user, or at its commencement, or during its continuance. The circumstance that in this case user had in fact extended right back to the earliest potential date of grant appears to have no bearing on the point, since that was not user relied on to establish the grant.

That is consistent with his conclusion about the effect of Angus v Dalton (552A-D)

“In our judgment Angus v. Dalton (1877) 3 Q.B.D. 85; (1878) 4 Q.B.D. 162; (1881) 6 App.Cas. 740 decides that, where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.

If this legal fiction is not to be displaced by direct evidence that no grant was made, it would be strange if it could be displaced by circumstantial evidence leading to the same conclusion, and in our judgment it must follow that circumstantial evidence tending to negative the existence of a grant (other than evidence establishing a impossibility) should not be permitted to displace the fiction. Precisely the same reasoning must, we think, apply to a presumed lost grant of a profit a prendre as to an easement.”

In that passage, which may be regarded as the definitive statement of the doctrine, no restriction is placed on the date at which a grant might be presumed to have been made. The FTT was entirely justified in placing reliance upon it for the purpose of considering the Date Point.

Tremayne v English Clays Lovering Pochin [1972] 1WLR 657 was another case in which, although it would be ludicrous to require particulars of by whom, to whom, and exactly when the fictitious grant might be made, particulars were ordered as to whether the supposed lost modern grant was alleged to have been made before after certain dates which might be relevant to attempts to rebut the presumption. It does not appear to assist on the Date Point.

Oakley v Boston [1976] QB 270 has already been mentioned. Oxfordshire County Council ex p Sunningwell [2000] AC 335 contains a useful historical account of the development of the law of prescription but contains nothing bearing directly on the Date Point, save that the whole idea of lost ‘modern’ grant was that the grant was supposed to take place after 1189 - that is, there is nothing inherent in the doctrine which ties the date of grant to the commencement of user.

Bakewell Management Ltd v Brandwood [2004] UKHL 14 has no bearing on the Date Point, though it refers in passing to an ‘antecedent grant’ (that is, preceding the relevant user): it does not address the question about how much the supposed grant might precede the relevant user.

Housden v. Wimbledon and Putney Commons Conservators [2008] 1 WLR 1172 (CA) has already been considered in the context of the Vires Point. The appellant argues that in that case the Court of Appeal assumed that a lost grant could not long predate the relevant user, by repeatedly referring to the capacity of the owner of the servient land against whom enjoyment was had to make a grant. This was, however, a case in which the defendant conservators of Wimbledon Common had been established by a statute of 1871 which vested the servient land in them, and provided that it would not be lawful for them to dispose of any part of ‘the commons.’ They argued unsuccessfully that they could not have made a grant to the person claiming a right of way or his predecessors since they lacked capacity. The facts therefore dictated the way in which the court considered the matter. There is nothing about it to justify the conclusion that the Court made the assumption for which the appellant argues.

It is interesting to note that the question whether it mattered that the owners of the Commons only became incapable grantors on the statutory vesting in the Conservators under the 1871 Act was dealt with in written submissions, but did not have to be decided, and was not discussed (1175B).

On the case law, therefore, there is in the view of this Tribunal nothing to support the idea that the grant can only be presumed to have been made on the date at the commencement of the relevant user, so that if at that date the supposed grantor lacks capacity, a grant cannot be presumed. On the contrary, Palmer v Guadagni [1906] 2 Ch 494 is inconsistent with it; and Tehidy Minerals Ltd v Norman points in the other direction.

Megarry & Wade, The Law of Real Property (10th ed, para. 27-065) states

“But it is a good defence that during the entire period when the grant could have been made, there was nobody who could lawfully have made it,”

citing Neaverson and Tehidy. The FTT relied strongly on this passage. But then it goes on.

“Thus the court has refused to presume a lost grant of a way where the land had been in strict settlement (under which there was no power to grant in fee simple) from the time when the user began, down to the time of action.”

As Counsel for the appellant points out, at least one of the editors of Megarry & Wade has expressed a view consistent with the latter but not (perhaps) the former passage, in an earlier textbook: see M Dixon, Principles of Land Law (4th Ed.) at 7.11.2 (seemingly not cited to the FTT) where it is said:

“Indeed, it seems that the one way in which the servient owner can defeat the claim [under the doctrine of lost modern grant] is if he shows that the servient owner who is assumed to have made the grant (that is, the owner at the commencement of 20 years’ use) was legally incompetent at the time […]

But it is not stated why the grantor has necessarily to be the owner at the commencement of the 20 years use, though no doubt he or she often will be.

Gale on Easements (22nd Ed.) 2024 at 4-101 states

“It will have been seen that as a general rule the enjoyment of an easement as against an owner of the servient tenement who is unable to dispose of the fee is not sufficient to give rise to a prescriptive title, and that the ordinary cause of such an inability arises from a deficiency of estate, as where a servient owner is tenant for life or tenant for years. The inability to dispose of the fee may, however, arise from other causes, for instance by reason of the doctrine of ultra vires or where the owner of the servient tenement is restrained from alienation.

Thus, where the owner of the servient tenement is a company whose powers of disposition are limited, and a grant of the easement by such company would be ultra vires, it seems that no prescriptive title will arise…” [emphasis supplied]

This passage was set out in the decision of the FTT, but not, apparently, regarded as supporting the appellant on the Date Point. Counsel for the appellant argues that these passages cast the matter of competence to make a grant in terms of the capacity of the servient owner against whom the would-be right is enjoyed. But, correctly understood, they do not in fact support the appellant’s case.

The passage in Gale from which it is said ‘it will have been seen’ appears to be 4-82, and the authority cited is Daniel v North (1809) 11 East 372 (which was not cited before me). In that case Lord Ellenborough said,

“The foundation of presuming a grant against any party is, that the exercise of the adverse right on which such presumption is founded was against the party capable of making the grant; and that cannot be presumed against him unless there were some probable means of his knowing what was done against him.”

Although the first part of that sentence might sound initially as if it supports the appellant’s case, it is clear from the second part of it that the learned judge is referring not to requirement that there be a competent grantor for the notional grant (the ‘competent grantor’ rule), but to the rule that user cannot found a presumption of such a grant by the fee simple owner (or cannot ‘bind’ the fee simple owner) unless by the acquiescence of the fee simple owner (‘user against the fee simple’ rule).

They are different rules. The point in the former is that no grant could have been made, so that presuming a grant would not serve the purpose of supplying a lawful origin for the user; the point in the latter is that no acquiescence capable of binding the relevant estate has occurred, so that there is no basis for the presumption.

In Daniel v North itself, acts of prescription could only be shown during a time when the land over which the claim was made was subject to a tenancy, and since during that time the landlord was not able to interfere with the user (and there was no evidence he knew about it anyway), the claim based on prescription failed. This was an application of the ‘user against the fee simple’ rule, not the ‘competent grantor’ rule.

Accordingly, neither the case law nor the legal texts, properly understood, support the appellant’s case on the Date Point. On the contrary, Palmer and Tehidy in particular point in the other direction. Once the distinction is clearly made between the ‘competent grantor’ rule on the one hand, and the ‘user against the fee simple’ rule on the other, there is no reason to suppose that the presumed grant need take place at any particular time (and in particular it need not take place immediately before the commencement of the relevant user), save that it must be since 1189 (or it would not be lost modern grant), and before the commencement of the minimum period of prescriptive user relied upon (or it could not justify that user); and it must be possible to identify a time within that period at which such a grant could have been made by a capable grantor (or it does not produce a lawful origin for the user); and the user relied upon must be user as of right by and against the fee simple for the appropriate period. But the user relied upon need not be user against a competent grantor.

The appellant argued that it was counter-intuitive to hold that a combination of non-use of the alleged easement at a time when a grant could validly have been made (between 10th February 1958 and 17th July 1967) coupled with evidence of long use of the way at a time when a grant could not validly have been made – neither of which, of themselves would have sufficed to found a prescriptive claim – could, when taken together, add up to an effective presumed grant.

The Tribunal considers that there is nothing counter-intuitive in holding that long user as of right against the fee simple, acquiesced in by the then owner of the fee simple, gave rise to the presumption of a prior grant justifying that user as of right, unless there was no capable prior grantor (in which case a supposed grant could not either justify or explain the long user).

In the course of argument, the Tribunal raised the question whether there might not nonetheless be something counterintuitive about presuming from only recent long user a grant, say, several hundred years beforehand, if that was how far back one had to go to find a competent grantor. It would entail a wide separation between the user founding the presumption of a grant, and the supposed date of grant itself.

However, while such a gap might diminish the supposed explanatory power of the notional grant (not, perhaps, its most important function in the context of prescription), it is nonetheless capable of justifying the user for the purposes of the law of prescription.

The appellant urged upon me considerations of public policy, suggesting that the some 167,000 registered charities, many or perhaps most of which own land, will not have the value of that land and its availability to support charitable purposes compromised by adverse third-party rights if the appeal succeeds; and that it was desirable, as a matter of clarity and certainty, that would-be dominant owners could not look back in time to a potentially unlimited extent to find a competent grantor so as to override the protection afforded by the charities legislation.

It seems preferable, however, to determine this appeal, not on the basis of debateable policy considerations, but on the basis of the law as this Tribunal understands it to be.

Accordingly, the appellant’s appeal on the Date Point falls to be dismissed, and the respondent’s cross-appeal on the Vires Point (which in any event was only pursued in case the appellant’s appeal should succeed) likewise falls to be dismissed.