[2025] UKUT 294 (LC)

The respondent, as owner of Pleasington, claimed to have the benefit of the right of way under the doctrine of lost modern grant and/or s.2 Prescription Act 1832, based on long enjoyment of the way as of right for the requisite period of 20 or 40 years since 1959.

The FTT summarised the doctrine of lost modern grant in the following way (para.50)

“By the doctrine of ‘lost modern grant’, a fictional grant of an easement is presumed to have been made at a date in the past upon proof of 20 years’ or more of the requisite use. Although a ‘legal fiction’, this doctrine covers those cases of long use where the period relied upon stops short of the “next before some suit or action” date of section 4 Prescription Act 1832, as in Healey v Hawkins [1968] 1 W.L.R. 1967 and Tehidy Minerals Limited v. Norman [1971] 2 QB 528.”

The use in question must have been open, exercised as of right, without force, secrecy or permission.

Moreover, as stated in Gale on Easements, 21^st ed., paragraph 4-105

“…as a general rule the enjoyment of an easement as against an owner of the servient tenement who is unable to dispose of the fee is not sufficient to give rise to a prescriptive title, and … the ordinary cause of such an inability arises from a deficiency of estate, as where a servient owner is tenant for life or tenant for years. The inability to dispose of the fee may, however, arise from other causes, for instance by reason of the doctrine of ultra vires or where the owner of the servient tenement is restrained from alienation.

Thus, where the owner of the servient tenement is a company whose powers of disposition are limited, and a grant of the easement by such company would be ultra vires, it seems that no prescriptive title will arise either where an easement of any kind is claimed by prescription at common law or under the doctrine of lost grant, or where an easement other than light is claimed on the ground of a 20 years’ enjoyment under s.2 of the PA 1832. The prescriptive title will not arise, because the necessary grant cannot be presumed.”

Megarry & Wade, the Law of Real Property, 10^th ed., 27-065states,

“…it is a good defence that during the entire period when the grant could have been made, there was nobody who could lawfully have made it. Thus the court has refused to presume a lost grant of a way where the land had been in strict settlement (under which there was no power to grant in fee simple) from the time when the user began, down to the time of action. When no grant could be made without some authority’s consent, the court has refused to presume that consent without evidence of the authority’s acquiescence in the user. The court has refused to presume a lost grant which would be contrary to statute or custom.”

The FTT found that there was insufficient evidence of user of the alleged right of way to support the claim in the period from 1959 to 1977, but that between 24 August 1977 and 11 February 2021 (when user became contentious) the then owner of Pleasington and others had made regular use of the alleged way with and without vehicles, as of right, so as prima facie to found a claim in prescription by lost modern grant and/or under s. 2 Prescription Act 1832 over the periods of both 20 and 40 years.