London Tara Hotel Ltd v Kensington Close Hotel Ltd

A prescriptive easement is acquired through more than 20 years’ uninterrupted use nec vi, nec clam, nec precario. Those three requirements are exhaustive; the law adds no separate requirement that use appear to a reasonable landowner as an assertion of right. A landowner’s subjective ignorance of a change in the user’s identity does not make open use permissive or secret. A personal licence ends according to its legal effect, and implied permission requires an overt act communicated and understood as permission. Use by contractors or coaches may benefit the dominant land, and a general vehicular right ordinarily extends to vehicles required for the land’s reasonable use.

Kensington Close Hotel Ltd claimed a prescriptive right of way over a roadway belonging to London Tara Hotel Ltd. Roth J held that the relevant use had continued for more than 20 years without force, secrecy or permission, and that a personal licence granted in 1973 had ceased to govern the use after a change of ownership in 1980: [2010] EWHC 2749 (Ch).

Tara appealed, arguing that its ignorance of the change in ownership made the continuing use permissive or secret, that a fresh licence should be inferred, and that any prescriptive right excluded coaches and construction vehicles. The central issues were the meaning of use as of right, the circumstances in which permission may be implied, and the scope of a general vehicular right of way.

1. Disposition. The appeal was dismissed unanimously. Aikens LJ agreed with the reasons of the Master of the Rolls and Lewison LJ.
2. Prescriptive use. More than 20 years’ uninterrupted use of a way with the necessary qualities gives rise, through the doctrine of lost modern grant, to the legal fiction of a grant. Use as of right is exhaustively defined by nec vi, nec clam, nec precario: without force, without secrecy and without the servient owner’s permission. The Supreme Court’s decision in R (Lewis) v Redcar & Cleveland Borough Council (No 2) [2010] UKSC 11 confirmed that no additional requirement exists that use must outwardly appear to a reasonable landowner to be an assertion of right. The same approach applies to prescriptive easements.
3. Licence and ignorance. The 1973 licence was personal to KCL and ceased to govern use when KCL ceased to own the hotel in 1980. Tara’s mistaken belief that the licence continued did not make the subsequent use permissive. Nor was the use secret merely because Tara was unaware of the change in ownership. Deliberate concealment or misleading conduct could have produced different considerations, but neither was alleged.
4. Implied permission. Tara could not raise a fresh implied-licence case on appeal because it had not been pleaded or investigated at trial. In any event, an implied licence is a question of fact and requires an overt act, including a non-verbal communication, intended and understood as permission for conduct which would otherwise be trespass. Mere inaction, toleration, silent acquiescence or good relations do not suffice. The judge had applied that test correctly: R (Beresford) v Sunderland City Council [2003] UKHL 60.
5. Vehicles and benefit to the dominant land. Use by coach drivers counted because it accommodated and benefited the hotel and was known about, benefited and organised by its management. No requirement existed that the use must be such as to enable an action in trespass against the dominant owner. A general vehicular right ordinarily extends to vehicles required for the ordinary and reasonable use of the land, including substantial repair or redevelopment works. The late attempt to exclude construction vehicles had not been put in issue at trial and was, in substance, impracticable to define. See Williams v James (1867) LR 2 CP 577.

1. Court of Appeal (Civil Division). The appeal from the High Court was dismissed unanimously: [2011] EWCA Civ 1356.
2. High Court (Chancery Division). Roth J held that Kensington Close Hotel Ltd had acquired a prescriptive right of way over the roadway: [2010] EWHC 2749 (Ch). A later judgment concerning the form of order addressed the scope of the right in relation to construction vehicles: [2010] EWHC 3346 (Ch).