[2025] UKUT 294 (LC)

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.