The Kingdom Hall Trust v Peter Robert Davies

A prescriptive easement based on lost modern grant requires long user as of right against the fee simple and a possible competent grantor. The grant need not be presumed immediately before, or at the commencement of, the relevant user. It may be presumed at any time after 1189 and before the commencement of the minimum period of user, provided a capable grantor could then have made it. User against a charity is not inherently incapable of founding prescription. However, section 29(3)(a) of the Charities Act 1960 does not authorise a fictional grant or convert the Prescription Act 1832 into authority for a charity to grant an easement. The appeal and cross-appeal were dismissed.

The appellant charity appealed from the First-tier Tribunal (Property Chamber), which had held that land at Kingdom Hall was subject to a prescriptive right of way benefiting adjoining land. The FTT found qualifying use from 1977 to 2021, but held that charitable ownership prevented a presumed grant during that period while allowing the grant to be presumed during the period from 1958 to 1967, before the land became charitable property.

The appellant challenged the latter conclusion on the Date Point. The respondent cross-appealed the conclusion on the Vires Point, namely that section 29 of the Charities Act 1960 generally prevented prescription against charity land. The central issues were whether the statutory exception in section 29(3)(a) applied and when a lost modern grant could be presumed.

1. Vires Point. The respondent’s cross-appeal was dismissed. Even assuming that a fictional lost grant could be a transaction for the purposes of section 29, section 2 of the Prescription Act 1832 gave no authority to a charity to grant an easement. It merely provided that a lawful easement claim was not defeated solely because the qualifying use began before the statutory period. The 20-year and 40-year periods arose from the common-law presumption of grant and were not statutory creations: Housden v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200.
2. The protection afforded by section 29 was not anomalous. It reflected the special restrictions imposed on charities and comparable statutory bodies. Presuming a lost grant could otherwise bypass the statutory question whether the disposition was in the charity’s interests.
3. Date Point. The appellant’s appeal was dismissed. The relevant distinction was between the competent-grantor rule and the user-against-the-fee-simple rule. A grant cannot be presumed if no capable grantor could have made it. Separately, qualifying use must be as of right and against the fee simple for the requisite period. The supposed grantor need not be the owner of the servient land when the prescriptive user began.
4. The presumed grant must have been made after 1189 and before the commencement of the minimum period of user relied on. No rule required it to be made immediately before, at the start of, or during that user. Palmer v Guadagni [1906] 2 Ch 494 and Tehidy Minerals Ltd v Norman [1971] 2 QB 528 supported that conclusion.
5. The appeal and cross-appeal were therefore dismissed.

• Upper Tribunal (Lands Chamber): dismissed the appellant’s appeal on the Date Point and the respondent’s cross-appeal on the Vires Point.
• First-tier Tribunal (Property Chamber): held that the claimed right of way existed, rejected the Vires Point, and accepted the Date Point.