[2025] UKUT 294 (LC)

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.