Strand, London, WC2A 2LL
B e f o r e :
| LONDON TARA HOTEL LIMITED
|- and -
|KENSINGTON CLOSE HOTEL LIMITED
Nicholas Dowding QC and Stephen Jourdan QC (instructed by Payne Hicks Beach)
for the Defendant
Hearing dates: 6, 7, 10, 11, 12, 17 and 18 May 2010
Crown Copyright ©
Mr Justice Roth :
The Disputed Rights of Way
"together with a right of way for all purposes for the Purchaser and all persons authorised by him in common with the Vendors and all persons authorised by them over the piece of land delineated and coloured blue on the said plan between the roadway in part coloured green and in part hatched red on the said plan on the one hand and any building erected on the pieces of land coloured red and edged green respectively on the said plan on the other hand …"
i) whether the defendant is entitled to an easement by prescription in the form of a right of way over the TRR for all vehicles;
ii) if not, whether it has an easement in the form of a right of way over the TRR for coaches and/or light vans;
iii) whether the right of way granted over the blue triangle by the 1938 Conveyance is limited to vehicles of a size that could pass through the eastern archway as originally constructed (and if so, what that size is);
iv) if the defendant does not succeed on issue (i), whether the remedy to the claimant should be by way of an injunction or whether it should be limited to damages, and in that case whether the claimant should have liberty to apply subsequently for an injunction on the basis of a change in circumstances.
(a) Knowledge of the 1973 Licence
(b) Knowledge of Changes in the Ownership of KCH
"I think that Tara would have noticed the transfer of ownership from Forte (UK) Limited to Posthouses Limited in 1996 because of the rebranding, and through invoicing and correspondence. I remember also that during this period various planning notices were on display outside the Hotel relating to the works being carried out. These notices may have featured the name of Posthouses Limited as the owner of the Hotel at the time. I think that these would have come to Tara's attention."
The correspondence to which Mr Walsh referred included his letters as chairman of the Kensington High Street Association that he wrote on the KCH's headed notepaper which bore the name of the corporate owner and which would always go to the Tara Hotel.
(c) Use of the TRR by Coaches and Small Vans
"When I delivered passengers to the Kensington Close Hotel I would always use the Tara Ring Road to turn around my vehicle. My method would always be to arrive [at] Scarsdale Place, enter the Tara Ring Road, use it to turn the coach around and then drop off the passengers in front of the Kensington Close Hotel when my coach was away from the London Tara Hotel. I did this because there was a single yellow line directly in front of the Kensington Close Hotel which would be used for drop offs. I believe all or most of the coach drivers going to the Kensington Close Hotel did the same."
And he added:
"I would also say that the use by coaches of the Tara Ring Road was pretty obvious. When we pulled up outside the Kensington Close Hotel after having turned around, our drop-off at the Kensington Close Hotel would have been clear to see. In fact there are occasions when coaches queue[d] up to drop off at the Kensington Close having used the Tara Ring Road to turn around and this happens on the Ring Road just before it joins Scarsdale Place, which is very visible to Tara staff."
(ii) Small vans
(a) Construction of the 1973 Licence
"(a) [KCL] hereby admits that it has no right to use the [TRR] or any part thereof except by the licence of the [Licensor].
(b) The [Licensor] hereby grants unto [KCL] licence to use and enjoy the [TRR] for the purpose of ingress to and egress from the [KCH land] with or without vehicles for the limit of one year from the date hereof and so on from year to year unless and until the licence hereby granted shall be determined in manner hereinafter appearing.
(c) In consideration of the foregoing [KCL] will on the thirty-first day of January in every year during the subsistence of the licence hereby granted pay to the [Licensor] the sum of One pound (£1) if demanded as an acknowledgement that the enjoyment of the said way is had under this Agreement and not otherwise."
"1. No person shall be entitled to exercise the rights hereby granted except [KCL] its servants and agents and those having bona fide and lawful business with [KCL] (other than residents of or visitors to the said Kensington Close Hotel).
4. The rights granted in respect of that part of the [TRR] shown hatched brown on the said plan "A" shall not be exercised except for the purpose of permitting the egress from the [KCH] of those vehicles as are of such size as to be unable to leave the [KCH land] by any other exit."
"The KCH service entrance adjacent to the Tara entrance, was completely unsuitable, mainly because of the size of the arch entrance and the lack of turning space within their service area. This resulted in congestion in Scarsdale Place with vehicles delivering to or collecting up from the KCH waiting or actually unloading in the street causing blockages and what would be a potentially unsightly introduction to the Tara site.
The solution to relieving the congestion this caused in Scarsdale Place, (which was a solution I identified and suggested), was to give the KCH access to their service yard from our intended ring road through the boundary between the two sites. … I saw no reason why Aer Lingus should not also allow KCH to use this road if that would resolve the problem caused by their delivery vehicles obstructing Scarsdale Place."
It is clear, as Mr Phillips indeed states, that his suggestion was taken up and led to the grant of the 1973 Licence.
"It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner…. 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. So in Dalton v. Angus & Co. (1881) 6 App.Cas. 740, 773, Fry J. (advising the House of Lords) was able to rationalise the law of prescription as follows:
"the whole-law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest." "
"Thus in a claim under the Act, what mattered was the quality of enjoyment during the 20-year period. It had to be by a person "claiming right thereto" or, in the language of section 5 of the same Act (as amended by the Act of 1888), which dealt with the forms of pleadings, "as of right." In Bright v. Walker (1834) 1 C.M. & R. 211, 219, two years after the passing of the Act, Parke B. explained what these words meant. He said that the right must have been enjoyed "openly and in the manner that a person rightfully entitled would have used it" and not by stealth or by licence. In Gardner v. Hodgson's Kingston Brewery Co. Ltd.  AC 229, 239, Lord Lindley said that the words "as of right" were intended "to have the same meaning as the older expression nec vi, nec clam, nec precario." (See also per Cotton L.J. in Earl De la Warr v. Miles (1881) 17 Ch. D. 535, 596.)"
"There is in my view an unbroken line of descent from the common law concept of nec vi, nec clam, nec precario to the term "as of right" in the Acts of 1832, 1932 and 1965. It is perhaps worth observing that when the Act of 1832 was passed, the parties to an action were not even competent witnesses and I think that Parke B. would have been startled by the proposition that a plaintiff asserting a private right of way on the basis of his user had to prove his subjective state of mind. In the case of public rights, evidence of reputation of the existence of the right was always admissible and formed the subject of a special exception to the hearsay rule. But that is not at all the same thing as evidence of the individual states of mind of people who used the way. In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use a footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. Where Parliament has provided for the creation of rights by 20 years' user, it is almost inevitable that user in the earlier years will have been without any very confident belief in the existence of a legal right. But that does not mean that it must be ignored."
"A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.
Authority, however, establishes that a licence to use land cannot be implied from mere inaction of a landowner with knowledge of the use to which his land is being put."
"The true approach is to determine the character of the acts of user or enjoyment relied on. If they are sufficient to amount to an assertion of a continuous right, continue for the requisite period, are actually or presumptively known to the owner of the servient tenement and such owner does nothing that is sufficient ... I add only this, that any statement that the enjoyment must be against the will of the servient owner cannot mean more than 'without objection by the servient owner'. If it did, a claimant would have to prove that the right was contested and thereby defeat his own claim."
"In the present case the owners did not expressly license the use of the land by the public. The council rely on two circumstances, however, as justifying the inference that those who used the sports arena did so precario, merely by licence from the owners of the land. The first is that the owners cut the grass. But that is at least equally explicable on the basis that the owners were concerned, as many owners would be, for the appearance of such a large and prominent area of open land in the heart of the town. Like charity, care of amenities begins at home. The second matter relied on is the, now rather dilapidated, wooden seating along the perimeter. Whatever may have been its original purpose, the continued existence of the seating is consistent with the owners of the land having acquiesced, perhaps quite happily, in people using the area for football or other games which their friends or relatives would wish, or feel obliged, to watch. To an extent the owners may thus have encouraged these activities. The mere fact that a landowner encourages an activity on his land does not indicate, however, that it takes place only by virtue of his revocable permission. In brief, neither cutting the grass nor constructing and leaving the seating in place justifies an inference that the owners of the sports arena positively granted a licence to local residents and others, who were then to be regarded as using the land by virtue of that licence, which the owners could withdraw at any time.
In these circumstances I would conclude that local people used the land nec precario."
"Acquiescence, by contrast, denotes passive inactivity. The law sometimes treats acquiescence as equivalent in its effect to actual consent. In particular, acquiescence may lead to a person losing his right to complain of something just as if he had agreed to it beforehand. In this area of the law it would be quite wrong, in my opinion, to treat a landowner's silent passive acquiescence in persons using his land as having the same effect as permission communicated (whether in writing, by spoken words, or by overt and unequivocal conduct) to those persons. To do so would be to reward inactivity; despite his failing to act, and indeed simply by his failure to act, the landowner would change the quality of the use being made of his land from use as of right to use which is (in the sense of the Latin maxim) precarious."
"… I have no difficulty in accepting that Lord Hoffmann was absolutely right, in Sunningwell  1 AC 335, to say that the English theory of prescription is concerned with "how the matter would have appeared to the owner of the land" (or if there was an absentee owner, to a reasonable owner who was on the spot). But I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility (or, in the inspector's word, deference) towards members of the golf club who were out playing golf. It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted (as all the members of the court agree, in much the same terms) with courtesy and common sense. But courteous and sensible though they were (with occasional exceptions) the fact remains that they were regularly, in large numbers, crossing the fairways as well as walking on the rough, and often (it seems) failing to clear up after their dogs when they defecated. A reasonably alert owner of the land could not have failed to recognise that this user was the assertion of a right and would mature into an established right unless the owner took action to stop it …."
"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 (see R (Beresford) v Sunderland City Council  1 AC 889, paras 6, 77), 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."
That is a reference to the issue raised as to whether it was necessary to ask the further question, "whether it would have appeared to a reasonable landowner that users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging": see at .
"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."
"in emphatic agreement with Lord Hope DPSC in his view that one must focus on the way in which the lands have been used by the inhabitants. Have they used them as if they had the right to use them? This question does not require any examination of whether they believed that they had the right. That is irrelevant. The question is whether they acted in a way that was comparable to the exercise of an existing right?"
And he concluded (at ):
"… 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."
"In principle it seems to me that once permission has been given, the user must remain permissive and not be capable of ripening into a right save where the permission is oral and the user has continued for 40 or 60 years, unless and until, having been given for a limited period only, it expires or, being general, it is revoked, or there is a change in circumstances from which revocation may fairly be implied."
"I think there was evidence from which the jury were warranted in finding that there had not been any enjoyment for twenty years previously to the commencement of the action, by the plaintiff or those through whom he claimed, as of right; but that the enjoyment was precarious, and procured by the permission of the owner of the soil. I do not lay it down as a matter of law that the plaintiff is affected by the licence which Hooper had; but only that the learned judge was bound to leave the question to the jury, and that they were warranted in acting upon it as they have done."
"If the learned Baron had told the jury that the effect of the agreement between Hooper and Geach was to stamp the character of precariousness on the enjoyment by Gaved, Hooper's successor, his direction might have been objectionable."
"…whether there was any evidence from which the jury might properly find that the enjoyment of the leat in question was precarious. A plaintiff who is seeking to establish an enjoyment for the statutable period of twenty years, must, - with this exception, that he need not satisfy the jury of the fact of there having been a lost grant, or that the enjoyment commenced before the time of legal memory, - make out that his enjoyment has been under a claim of right. And I apprehend it would clearly be competent, in answer to such a claim, to shew that the enjoyment originated under an agreement with the tenant or owner of the servient tenement, and therefore was precarious and not as of right: and, upon proof of that fact, it would be for the jury to say whether the tenant of the dominant tenement had not continued the enjoyment in pursuance of a similar agreement, and whether it was not precarious."
"The question left, as far as the foul leat is concerned, was, 'Has the plaintiff or those through whom he claims had an uninterrupted enjoyment of the leat as of right for more than twenty years?' The answer is in the negative. It seems to me that the question was rightly put to the jury, and that there was abundant evidence to warrant their answer. The rule was also moved on the ground that the verdict was against the evidence. I think that, if the plaintiff had notice of the circumstance under which Hooper's enjoyment of the leat began, his subsequent enjoyment was not under a claim of right."
"The true position, as exemplified in the Chamber Colliery case, 32 Ch.D. 549, is that user in an asserted but mistaken belief that it is justified on a right of limited duration, which belief is acquiesced in, cannot be made the foundation of a grant of unlimited duration. To go as far as saying that no user based on a mistaken belief in a right could found a claim to prescription would be to say that the law will only presume a grant or allow a claim to prescription at common law in favour of someone who is aware that he is a wrongdoer" [my emphasis].
"For mistake as to the origin of the right asserted by the user to be relevant, it seems to me that it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted. 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. The fact that the claimant mistakenly thinks that he derived the right, which he is openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right."
"Oral permission given within the period will of course negative user as of right or any claim to user as of right, but so also, in my view, will a user which continues on a common understanding that the user is and continues to be permissive. If both parties have such a common understanding it cannot be, in my judgment, that there is an assertion to a claim as of right, nor could any such user bring home to the mind of the alleged servient owner that a claim of right was being asserted. This common understanding has been found by the judge, and there was ample evidence on which he could so find."
Coaches and small vans
"…, I am unable to accept that such parking as there was, whether by Leicester Dyers employees or delivery men when making deliveries, can properly be categorised as user as of right by Leicester Dyers itself. It must be remembered that, where an easement exists, it can only do so for the benefit of the dominant tenement. The personal convenience of individual employees or delivery men is not enough."
(c) The blue triangle
"We feel no doubt that the proper approach is that upon which the court construes all documents; that is to say, one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances."
"… one may have words so unambiguous that no surrounding circumstances could affect their construction."
That was not the position in that case, but in my judgment it is the position here. To limit the right of way to vehicles of a size that could pass through the archway of a particular building then in the course of construction would be inconsistent with the clear words of the grant that refer to "any building".