[2025] UKUT 294 (LC)

The FTT then held, however, that as a matter of law it suffices if the presumed grant could have been made at some point in time prior to the requisite enjoyment relied upon, even if this predated the earliest occasion of the use relied upon to generate the presumption (para 138-149). At 144 it said,

“I can glean or derive no principle from the cases that the date or date range of the presumed lost grant must be fixed or limited by reference to the date of the earliest occasion of use relied upon to generate the presumption e.g. that the Court or Tribunal must presume the date of the lost grant to have immediately preceded the period of use relied upon. It is a legal fiction, but one in which the Court or Tribunal is presuming a “lost” grant which (as per the quotations above [ie Megarry & Wade, The Law of Real Property (10th ed, para. 27-065)]) “could have been made”, as Buckley LJ said [in Tehidy Minerals Limited v. Norman [1971] 2 QB 528, 552] “at some time” before commencement of the period of use. This also reflects the language used by Sir Henn Collins MR in Neaverson (above) [Neaverson v. Peterborough RDC [1902] 1 Ch. 557 [in relation to the vires/contrary to statute principle:

“The question is whether that ought to be treated as evidence of a lost grant, which might have had a legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.”

Since here the land was not in charitable ownership between 10 February 1958 and 17July 1967, the user established by the respondent beginning in 1977 could be deemed to relate back to a fictitious grant made during that earlier period, when no statutory restriction against disposals applied (146).

On this basis, the FTT determined the Date Point against the appellant.