[2025] UKUT 294 (LC)

As already noted, Kingdom Hall has been held as charitable land since 17 July 1967.

The FTT noted that Section 29 Charities Act 1960 imposed general restrictions on the powers of any charity in relation to land held by it for its charitable purposes. It provided as follows.

“29Restrictions on dealing with charity property

(1)

Subject to the exceptions provided for by this section, no property forming part of

the permanent endowment of a charity shall, without an order of the court or of the

Commissioners, be mortgaged or charged by way of security for the repayment of

money borrowed, nor, in the case of land in England or Wales, be sold, leased or

otherwise disposed of.

(2)

Subsection (1) above shall apply to any land which is held by or in trust for a

charity and is or has at any time been occupied for the purposes of the charity, as it

applies to land forming part of the permanent endowment of a charity; but a

transaction for which the sanction of an order under subsection (1) above is required

by virtue only of this subsection shall, notwithstanding that it is entered into without

such an order, be valid in favour of a person who (then or afterwards) in good faith

acquires an interest in or charge on the land for money or money's worth.

By reference to s. 29 Charities Act 1960 (though the point is the same under subsequent Acts), the appellant submitted that the grant of an easement over the appellant charity’s car park would have been a disposal of charity property, and so would have required an order of the Court or of the Charity Commissioners, without which any such disposition would have been void and ultra vires the charitable trustees. Since, when no grant could have been made without some authority’s consent, the court refuses to presume that consent without evidence of the authority’s acquiescence in the user, and no such evidence was available here, a grant would have been void and ultra vires, and no grant of an easement over Kingdom Hall could be presumed.

The FTT accepted (paras105-112, 118) that the grant of an easement would be a ‘disposition’ caught by the statutory restrictions.

It accepted, too (paras. 116-118, 127) that accordingly compliance with those statutory restrictions (including the need to obtain an order of the Court or the Charity Commissioners) would be required before a grant could validly be made; and, following Oakley v Boston [1976] QB 270, that such consent cannot be presumed by any court for the purposes of a prescription claim.

The respondent argued, however, that the presumed grant was saved by s.29(3)(a) Charities Act 1960. It was a transaction for which general or special authority is expressly given (without the authority being made subject to the sanction of an order) by a statutory provision contained in an Act of Parliament, namely s. 2 Prescription Act 1832, which gave authority for prescriptive easements to arise from presumed or inferred grants.

The FTT held that, while the statutory reference to a transaction might include a fictional grant of the kind in contemplation, the act did not give authorisation to charities to permit the grant by charities of easements, or the acquisition of easements against them. It considered that the respondent’s arguments rested on a “strained and impossible reading” of the subsection (paras 119-121) and contradicted the Law Commission’s view of the law in its recent review of charities law. On this basis, it determined the Vires Point in favour of the appellant.