[2024] UKUT 217 (LC)

In response to the difficulty of proving sufficient use to satisfy the common law requirement, judges developed more practical rules to avoid the disturbance of long established uses. Proof of long use, of the required quality and duration, was taken to give rise to a legal presumption that a previous owner of the land must have done something to confer a lawful title on the person or group who had been making use of the land, including title to use it for recreation as a village green or title to a right of way over it. That presumption is referred to as a “lost modern grant”, and its evolution was explained by Lord Hoffmann in R v Oxfordshire County Council ex p Sunningwell Parish Council [2000] 1 AC 335, at 349-351. The grant which is presumed is fictional but it nevertheless gives rise to a right which binds the owner of the land just as much as if the owner had themselves granted the right of way or dedicated the land for public use; the use is said to be “as of right”. A grant will be presumed where it is proved that the use has been enjoyed for a period of 20 years, provided the use for that period has been of the required quality or character to justify the law treating it as if it had a lawful origin.

To justify treating sufficiently long use as if it was use “as of right”, the law requires that the use must have three characteristics: it must not have been enjoyed by force; it must not have been enjoyed secretly; and it must not have been enjoyed with the permission of the owner of the land. In Sunningdale Lord Hoffmann used the traditional Latin phrase, nec vi, nec clam, nec precario to refer to these three qualities before explaining why the absence of force, stealth or permission had been insisted on:

In this appeal the only one of these three qualities which is contentious is the first, that the use of the right of way must not have been “by force”.

It is not suggested that Mr Sagier’s use of the route over Mrs Kaur’s driveway involved physical force or violence. “Force”, in this context, means contentiously or subject to protest or objection. To defeat the accrual of a right based on long use it is therefore enough for an owner to make it clear that they do not acquiesce in the use of their land. In Dalton v. Angus & Co. (1881) 6 App.Cas. 740, at 786, Bowen J suggested that “continuous and unmistakable protests” should be enough:

In Newnham v Willison (1987) 56 P&CR 8, 18, at page 19, Kerr LJ concluded from a review of the authorities that a use of land may become forceful “once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious.”

In R. (Lewis v Redcar and Cleveland Borough Council (No. 2) [2010] 2 AC 70, Lord Rodger of Earlsferry JSC cited Bowen J’s suggestion in Dalton v Angus and explained the requirement that the use should be without force, or “peaceable”, in the same way:

In Winterburn v Bennett [2016] EWCA Civ 482 the issue was whether a fish and chip shop had acquired a right by prescription for its owners and their customers to park on the car park of an adjoining social club. The club had erected two signs stating that the car park was private and for the use of its patrons only, but the owners of the shop argued that these were not enough to prevent the right they claimed from having accrued through long use. The Court of Appeal held that the signs were sufficient and that it had not been necessary for the club to do more. Having reviewed the authorities since Dalton v. Angus, David Richards LJ concluded: