ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Roth
Case No HCO7C02530
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE LEWISON
| LONDON TARA HOTEL LIMITED
|- and -
| KENSINGTON CLOSE HOTEL LIMITED
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Nicholas Dowding QC and Stephen Jourdan QC (instructed by Payne Hicks Beach) for the Respondent
Hearing date: 31 October 2011
Crown Copyright ©
The Master of the Rolls:
The background facts
The conclusions reached below
"[The] use of the [roadway] by and for the benefit of the [KC Hotel] after May 1980 was either pursuant to permission from [Tara] or it was not. I do not see that a mistaken belief that the use was governed by an express agreement granting a licence when as a matter of fact or law it was not can affect the position. That would introduce into the operation of prescription a subjective element which forms no part of this area of the law and would add to its complication."
"… that for a licence to be implied there must be some positive, overt act by the servient owner; mere inactivity will not do. In my view, the fact that a carefully drafted personal licence was granted to a particular licensee in 1973 cannot be regarded as a positive act evidencing an implied licence from a different servient owner in 1978 or 1980 (or any time thereafter) for use by a party not within the terms of the earlier licence. And there was no other positive act on which the claimant could rely."
"In the direct meaning of the term, the use by the [KC Hotel] was self-evidently not [secret]. It was open and frequent use, for all at the Tara Hotel to see. It is not in issue that the management of the Tara Hotel was well aware that the [roadway] was being used by service vehicles supplying the [KC Hotel] and I find that it also had actual knowledge that the [roadway] was being used from at least 1980 by coaches serving the [KC Hotel]. No objection to this use was taken until the events giving rise to this claim."
"Not only was there nothing surreptitious in the fact that ownership of the [KC Hotel], and thus use of the [roadway], passed away from KCL but I find that such a corporate transfer at some time within at the very least a 20 year period was something that should reasonably have been in the contemplation of the claimant and which, if it had been diligent in the protection of its interests, it would have checked. As Mr David Cook, the former finance director of Millenium & Copthorne group, who had some 40 years experience in the hotel industry, acknowledged, when hotels are owned by a group there are sometimes transfers from one company to another, and the actual operating company of a hotel may change over time. He accepted that these are things which would be readily appreciated and understood by anyone in the hotel industry. As I have already observed, all that the claimant had to do to establish the position was to make inquiry of the management of the [KC Hotel]. Of course, if it had not been given a true answer or the [KC Hotel] management had engaged in deception, very different considerations would arise: see per Lord Selborne LC in Dalton v Angus (1881) 6 App Cas 740 at 802. There was naturally no suggestion of that here."
The issues on this appeal
The argument that the use of the roadway was not "as if of right"
The argument that a licence to use the roadway should be inferred by words or conduct
The argument that the right of way does not apply to coaches
The argument that the right of way does not apply to construction vehicles
Lord Justice Aikens:
Lord Justice Lewison:
"The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right – in the first case because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user, and in the third, because he had consented to the user, but for a limited period."
"Assuming therefore, that there can be vis where the use is contentious, a perfectly adequate unifying element in the three vitiating circumstances is that they are all situations where it would be unacceptable for someone to acquire rights against the owner."
"..where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was."
"concerning himself, as the English theory required, with how the matter would have appeared to the owner of the land."
"I rather doubt whether, in explaining this term parenthetically as involving a belief that they were exercising a public right, Tomlin J meant to say more than Lord Blackburn had said in Mann v Brodie, 10 App.Cas. 378, 386, namely that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication."
"The true interpretation of those words "as of right" seems to me to be that he has done so upon a claim to do it, as having a right to do it without the lord's permission, and that he has so done it without that permission." (Emphasis added)
"In a certain sense a man has a right to enjoy what he has paid for, and, therefore, if the appellant here at any time during the year when she had paid for the right to use this way had been hindered, she would have had a right to complain that what I will call her contract had been broken, and that during the year she had a right to use the way. I do not think that this would have established a right in the proper sense, because, being but a parol licence, it might be withdrawn, and her action would be for damages, but she would have no right to the way. And in no sense could the right be the right contemplated by the Act. That right means a right to exercise the right claimed against the will of the person over whose property it is sought to be exercised. It does not and cannot mean an user enjoyed from time to time at the will and pleasure of the owner of the property over which the user is sought." (Emphasis added)
"The requirement that user be "as of right" means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owner's permission. If the owner is not going to submit to the claim, he has the opportunity to take advice and to decide whether to question the asserted right."
"Where land has been extensively used by local inhabitants for lawful sports and pastimes for 20 years and the tripartite test is satisfied, it is not necessary under section 15(4) of the 2006 Act to ask the further question whether it would have appeared to a reasonable landowner that the users were asserting a right to use the land for that purpose. It would be wrong to add a further test."
"In order to be "as of right" the user must be nec vi nec clam nec precario and in many situations user which meets those negative conditions will, without more, be "as of right". However those conditions, while always necessary, will not always be sufficient. It is also necessary to prove that there were circumstances which showed that the landowner acquiesced in the user as in an established right. In order to establish for the purposes of section 15(4) of the 2006 Act that use of the land for lawful sports and pastimes was as of right, it had also to be shown that it would have appeared to a reasonable landowner that the local inhabitants were asserting a right to use the land for the lawful sports and pastimes in which they were indulging.
It is a question of fact and degree whether the local inhabitants did sufficient to bring home to the reasonable landowner that they were asserting a right to use the land."
"In principle, however, the question remains the same: has the user been sufficient to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land?"
"The proposition that "as of right" is sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor stealth, nor the licence of the owner) is established by high authority."
"The first question to be addressed is the quality of the user during the 20-year period. It must have been by a significant number of the inhabitants. They must have been indulging in lawful sports and pastimes on the land. …And they must have been doing so "as of right": that is to say, openly and in the manner that a person rightfully entitled would have used it. If the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right…, the owner will be taken to have acquiesced in it—unless he can claim that one of the three vitiating circumstances applied in his case. If he does, the second question is whether that claim can be made out. Once the second question is out of the way—either because it has not been asked, or because it has been answered against the owner—that is an end of the matter. There is no third question."
"… were it the law that, upon registration, the owner's continuing right to use his land as he has been doing becomes subordinated to the locals' rights to use the entirety of the land for whatever lawful sports and pastimes they wish, however incompatibly with the owner continuing in his, I would hold that more is required to be established by the locals merely than use of the land for the stipulated period nec vi nec clam nec precario. If, however, as I would prefer to conclude, the effect of registration is rather to entrench the previously assumed rights of the locals, precluding the owner from thereafter diminishing or eliminating such rights but not at the expense of the owner's own continuing entitlement to use the land as he has been doing, then I would hold that no more is needed to justify registration than what, by common consent, is agreed to have been established by the locals in the present case."
"… I see no good reason whatever to superimpose upon the conventional tripartite test for the registration of land which has been extensively used by local inhabitants for recreational purposes a further requirement that it would appear to a reasonable landowner that the users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging. As Lord Walker of Gestingthorpe JSC has explained, there is nothing in the extensive jurisprudence on this subject to compel the imposition of any such additional test. Rather, as Lord Hope of Craighead DPSC, Lord Walker and Lord Kerr of Tonaghmore JJSC make plain, the focus must always be on the way the land has been used by the locals and, above all, the quality of that user."
"I am content to accept and agree with the judgments of Lord Hope DPSC, Lord Walker and Lord Brown JJSC that no overarching requirement concerning the outward appearance of the manner in which the local inhabitants used the land is to be imported into the tripartite test. The inhabitants must have used it as if of right but that requirement is satisfied if the use has been open in the sense that they have used it as one would expect those who had the right to do so would have used it; that the use of the lands did not take place in secret; and that it was not on foot of permission from the owner. If the use of the lands has taken place in such circumstances, it is unnecessary to inquire further as to whether it would be reasonable for the owner to resist the local inhabitants' use of the lands. Put simply, if confronted by such use over a period of 20 years, it is ipso facto reasonable to expect an owner to resist or restrict the use if he wishes to avoid the possibility of registration."
"Now, on principle, it appears to me that a prescriptive right to an easement over a man's land should only be acquired when the enjoyment has been open—that is to say, of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment. And I think on the balance of authority that this principle has been recognised as the law, and ought to be followed by us."
"It is not established on behalf of the defendants that the plaintiffs were informed by their vendors at the time of the conveyance, or ever ascertained in fact by any of their agents until quite recently, that the defendants' dock was being supported by the plaintiffs' land. Nor can I see any circumstances in this case sufficient to justify the Court in holding that the plaintiffs ought to have such knowledge attributed to them, or were put on inquiry. And in particular it does not appear to me that the existence of the two nuts on the plaintiffs' premises, about which so much has been said, gave the plaintiffs or their agents a reasonable opportunity of becoming aware of the enjoyment by the defendants of the support of their dock by the plaintiffs' land, or put the plaintiffs on inquiry."
"the enjoyment of the defendants had not been open—in this sense, that it had not come to the plaintiffs' knowledge, and was not of such a nature that their attention ought reasonably to have been drawn to it."
"The ties and rods are between twenty and thirty in number, and there are only two of which any visible signs appear upon an inspection of the exterior of the plaintiffs' property. Even as regards these two, the traces might, as it seems to me, be reasonably regarded as forming merely part of the camp-sheathing of the plaintiffs' own property. There are, no doubt, cases in which the owners of property have been held to be affected with notice of that which might have been discovered by the exercise of reasonable diligence…; but the learned judge came to the conclusion that in this case such a notice ought not to be attributed to the plaintiffs; and I am unable to differ."
"I do not doubt that, in order to found a prescriptive right of servitude according to Scots law, acts of possession must be overt, in the sense that they must in themselves indicate unequivocally to the proprietor of the servient tenement the fact that a right is asserted and the nature of the right. The proprietor who seeks to establish the right cannot, in my opinion, avail himself of any acts of possession in alieno solo, unless he is able to show that they were either known, or ought to have been known, to the owner or to the persons to whom he entrusted the charge of his property."
"In my view, the fact that a carefully drafted personal licence was granted to a particular licensee in 1973 cannot be regarded as a positive act evidencing an implied licence from a different servient owner in 1978 or 1980 (or any time thereafter) for use by a party not within the terms of the earlier licence. And there was no other positive act on which the claimant could rely."
"Here, there is nothing to suggest an assertion by the owners of the KCH land after 1980 that they were using the [roadway] pursuant to the 1973 Licence, or indeed some other licence granted by the claimant, in which assertion the claimant could therefore acquiesce. Instead, the claimant simply believed, insofar as it gave the matter any thought at all, that the use by the KCH of the [roadway] was pursuant to an earlier express licence, without regard to any assumption on the part of the owners of the KCH. … And of course there was nothing in the conduct of the owner of the KCH, as regards the manner in which it used the TRR, which showed that it believed that it was doing so only by reason of the 1973 Licence. On the contrary, the use of the TRR by KCH coaches and small vans would have shown, if anyone had troubled to consider the matter, that the use was not confined to the terms of the 1973 Licence."