The Court of Appeal has clarified the limits of the doctrine of lost modern grant in a dispute over a right of way across land held for charitable purposes. It ruled that long-standing use alone was not enough where the landowner had no legal capacity to grant the easement throughout the entire period relied upon, and the suggested grant pre-dated the use itself.
What did the Court of Appeal decide?
In The Kingdom Hall Trust v Peter Robert Davies [2026] EWCA Civ 1377, handed down on 2 November 2026, Lord Justice Lewison, with whom Lord Justice Males and Lord Justice Miles agreed, allowed the Kingdom Hall Trust’s appeal from the Upper Tribunal (Lands Chamber).
The central question was whether a prescriptive right of way could be acquired under the doctrine of lost modern grant where the land over which the right was claimed had belonged to a charity throughout the period of use, and no court order or Charity Commission authorisation had permitted the grant of an easement.
The Court held that the presumed grant must be connected to a period of qualifying use. It could not be placed at some earlier date when the land was capable of being burdened by an easement but when no use of the claimed route was taking place. The appeal was therefore allowed.
What was the dispute about?
Mr Davies claimed a pedestrian and vehicular right of way over a car park at the rear of the Telford Kingdom Hall of Jehovah’s Witnesses, for the benefit of his property at Pleasington, Plough Road, Telford.
The two properties had been in common freehold ownership until 10 February 1958, when Pleasington was sold. The property that later became Kingdom Hall was then being used as a cinema. On 17 July 1967, its freehold was conveyed to trustees to be used as a place of worship and held on express charitable trusts. It was transferred to the Kingdom Hall Trust Co in 1997, and following a merger in 2020 the Trust became the sole legal owner.
The First-tier Tribunal found that Mr Davies and his predecessors had used the route openly and as of right from 24 August 1977 until 11 February 2021. It rejected the claim to earlier use. The relevant period of proven use therefore began around ten years after the land had become subject to charitable trusts.
- Pleasington was sold, ending the common ownership of the two properties.
- The Kingdom Hall property was conveyed to trustees on express charitable trusts.
- The period of use accepted by the First-tier Tribunal began.
- The period of proven use relied upon by Mr Davies ended.
- The Upper Tribunal upheld the conclusion that a lost grant could be presumed from the earlier period before the land became charitable property.
- The Court of Appeal allowed the Kingdom Hall Trust’s appeal.
Why was the land’s charitable status important?
Charity legislation restricts the circumstances in which land held for charitable purposes can be disposed of. The judgment considered the statutory framework under the Charities Act 1960, the Charities Act 1992 and the current Charities Act 2011, as amended by the Charities Act 2022.
It was common ground that granting an easement over the land, whether by an express grant or by a fictional grant inferred through prescription, would be subject to those restrictions. In the absence of the required court order or Charity Commission consent, the Trust could not lawfully grant the right claimed.
The First-tier Tribunal and the Upper Tribunal accepted that there was no competent grantor during the period of proven use. However, they considered that a lost modern grant could be presumed to have been made between 1958 and 1967, before the property became charitable land. That period pre-dated the beginning of the use relied upon by Mr Davies.
Why did the earlier decisions fail?
The Upper Tribunal had relied principally on the Court of Appeal’s earlier decision in Tehidy Minerals Ltd v Norman [1971] 2 QB 528. It interpreted that authority as allowing a presumed grant to be placed at any time before the minimum period of qualifying use, provided that a capable grantor could have made it at some point.
Lord Justice Lewison considered that the relevant passage in Tehidy Minerals, if read in that broad way, was obiter and had been expressed too widely. The actual presumed grants in that case fell within the period of use relied upon. The court had not authorised a fictional grant at a time when no relevant use was taking place.
The judgment returned to the principle of acquiescence explained in Dalton v Angus (1881) 6 App Cas 740. Prescription is founded on the idea that a landowner knew, or had the means of knowing, about the use, had the power to stop it, and nevertheless allowed it to continue. A grant cannot sensibly be presumed against an owner at a time when there was no use to which that owner could object.
“The presumption of a lost modern grant is a retrospective exercise arising out of use as of right as against a competent grantor.”
— Lord Justice Lewison, [2026] EWCA Civ 1377
The Court also considered authorities including Roberts v James, Oakley v Boston, Pugh v Savage and Wheaton v Maple & Co. Those cases supported the need to connect the presumed grant with the period of use and with an owner capable of making the grant. In particular, the Court rejected the idea that the gap between 1958 and 1967 could assist Mr Davies when no relevant use had been established during that interval.
It followed that the 1958–1967 period could not provide the legal origin for the route’s use from 1977 onwards. Throughout the period of proven use, the land was held on charitable trusts and there was no competent grantor. The necessary foundation for a lost modern grant was therefore absent.
What does the judgment mean for landowners and property practitioners?
The decision is important for disputes involving prescriptive easements over land subject to statutory or other legal restrictions. It confirms that practitioners must examine not only how long a route has been used, but also the ownership and legal capacity of the servient landowner during the period relied upon.
Evidence of long, open and uninterrupted use will not necessarily establish an easement if the person or body against whom the use occurred could not lawfully have granted the right. Nor can a claimant avoid that difficulty simply by asking the court to place a fictional grant at a much earlier date when the land was not subject to the same restriction, if the relevant use had not yet begun.
The Court did not decide every possible situation involving a change in the landowner’s capacity. In particular, it left open whether use that begins against a competent grantor can continue to count after the land passes to an owner who is not competent to grant the easement. That issue was not necessary to determine this appeal.
Lord Justice Males acknowledged that the result might seem harsh given that the route had been used openly and as of right for almost half a century. However, he emphasised that the doctrine is a legal fiction embedded in the law, and any wider modernisation would be a matter for Parliament.
Frequently asked questions
What is the doctrine of lost modern grant?
It is a legal doctrine under which a court may presume that a lawful grant of a right, such as an easement, was made and subsequently lost where there has been sufficiently long use as of right. The presumption is rooted in the principle of acquiescence by a landowner capable of making the grant.
Why did Mr Davies’s right of way claim fail?
The land had been held on charitable trusts throughout the entire period of proven use, and no court order or Charity Commission consent authorising a grant was relied upon. The Court of Appeal held that a presumed grant could not be placed before the use began, during a period when no relevant use was taking place.
How long had the route been used?
The First-tier Tribunal accepted use by Mr Davies and his predecessors from 24 August 1977 to 11 February 2021, a period of more than 43 years.
Did the Court of Appeal decide that use against an incompetent grantor never counts?
The Court held that no fictional grant could be presumed where there was no competent grantor during the whole period in which the relevant use as of right was established. It left open the distinct question of use that begins against a competent grantor and later continues against an incompetent one.
What was the outcome of the appeal?
The Court of Appeal allowed the Kingdom Hall Trust’s appeal. Lord Justice Males and Lord Justice Miles agreed with the reasons given by Lord Justice Lewison.