[2025] UKUT 294 (LC)

The broad view for which the appellant contended was that user against a charity is never prescriptive user, so that it can never found the presumption of a lost grant, and the question of whether there was ever a competent grantor never arises. This is because acquiescence is the essential foundation of the doctrine of prescription, and acquiescence cannot be established, because neither the Court nor the Charity Commission have acquiesced, and the acquiescence of at least one of them is required.

However, the foundation of prescription is acquiescence in long user as of right, not acquiescence in the fictitious grant. Such user is obviously not itself a disposition or a transaction, though it may found the presumption of a grant. There is nothing in s.29 Charities Act 1960 to prohibit such acquiescence or render it ‘void’ in some sense, as Counsel for the appellant rightly accepted in the course of submissions. For example, the question whether Parliament can have contemplated that such acquiescence was caught by s.29 (1) Charities Act 1960 can be tested by considering how the section provides for capacity to be acquired when lacking. But the answer is absurd: it would involve the charity’s applying to the Court or the Commissioners for consent to its own acquiescence.

Counsel submitted instead that what caused the charity to lack capacity to acquiesce in the user was that the user and acquiescence were explicable only by a lost modern grant. But that is circular: it is merely to assert the conclusion, that there is something objectionable in presuming a lost modern grant against a charity. Or it is to conflate the user with the grant, when the doctrine of prescription is to presume the latter from the former, not to equate them.

Oakley v Boston [1976] QB 270 was a case in which the supposed grantor of a lost modern grant had power to grant an easement over glebe land only with the approval of the Ecclesiastical Commissioners. There was no evidence of any such approval. Their approval could not be presumed without (at least) evidence that they knew of the acquiescence in wrongful user, which there was not. Accordingly, no grant could be presumed. But it was not a question of the Ecclesiastical Commissioners acquiescing in the user, but of the possibility of their being taken to have consented to the notional grant by reason of their knowledge of the owner’s acquiescence in the user. Had they been found to have consented to a notional grant, the user might have formed the basis for the presumption of a lost grant. This implies that absent the consent of the Charity Commission to a presumed grant (which consent may perhaps itself be presumed on the basis of evidence that the Commission at least knew of and assented to the charity’s acquiescence in the user) a grant may not be presumed.

Accordingly, it is not that user against a charity without the consent of the Charity Commission is never capable of being prescriptive user, it is that such user can never found the presumption of a lost grant if there is no capable grantor. While the charity may not be a capable grantor, the question remains open whether there may not be another grantor who is capable.

The appellant argues that R (Newhaven Port & Properties Ltd) v East Sussex CC [2025] UKSC 7 supports the broad view in the following passage at [79].

“Similarly, in the English law of private easements (other than access of light) the capacity of the owner of the potential servient tenement to grant an easement is relevant to prescriptive acquisition. As prescription is based on the fiction of a grant, a landowner who could not have granted the claimed easement cannot suffer prescription: see Sunningwell, per Lord Hoffmann at pp 349G—351C in relation to the common law; Housden v Conservators of Wimbledon and Putney Commons [2008] 1 WLR 1172, paras 43 and 76, per Mummery and Carnwath LJJ respectively, in relation to the 1832 Act; Megarry & Wade op cit at para 28-065; Gale on Easements, 19th ed (2012), paras 4.88—4.91. The Law Commission in its 2011 report, Making Land Work: Easements, Covenants and Profits a Prendre (Law Com No 327) (HC 1067) while advocating the removal of the fiction of grant, recommended (at para 3.168) that the use of land cannot be qualifying use, for the purposes of prescription, at any time when the land is in the freehold ownership of a person or body who is not competent to grant an easement over it.”

However, this Tribunal does not understand either this passage, or the case law to which it refers, to assert that the present state of the law is that user against a charity, or any potentially servient owner which lacks capacity to grant an easement, can never found the presumption of a lost grant. The report of the Law Commission was not making the distinctions for which the appellant now contends: see 3.101; 3.165-167.

Accordingly, the Tribunal rejects the broad view for which the appellant contends.