London Tara Hotel Ltd v Kensington Close Hotel Ltd

Right of way – Prescription — Lost modern grant — Claimant company owning access road — Previous owner of defendant’s land using access road under personal licence — Defendant’s predecessors in title continuing to use access road after expiry of licence — Claimant seeking injunction restraining defendant from trespassing on access road — Whether defendant acquiring right to use access road — Claim dismissedThe claimant and the defendant owned adjacent hotels. The defendant’s hotel, which it purchased in 2002, was the older of the two.A private service road that skirted the defendant’s main building was on land belonging to the claimant. The defendant and its predecessors had been using the road since the claimant’s hotel was constructed and asserted that it had acquired the right to do so.In 1973, the then owner of the site of the claimant’s hotel had granted the then owner of the defendant’s hotel a personal licence to use the road (the 1973 licence). The licence expired in 1980, when the ownership of the defendant’s hotel changed hands. However, the access road continued to be used for deliveries and by coaches taking passengers to the defendant’s hotel. That use continued until 2007, at which time the claimant asserted that the defendant had no rights over the access road and that the use by the defendant and its agents constituted a trespass that should cease with immediate effect.The claimant commenced proceedings, seeking an injunction restraining the defendant from trespassing on the road, together with damages. The defendant argued that it had acquired an easement by prescription over the access road, either under the Prescription Act 1832 or by lost modern grant based on at least 20 years’ continuous use beginning in 1980. Held: The application was dismissed.The doctrine concerning the acquisition of an easement by prescription, whether under the doctrine of the lost modern grant or under the 1832 Act, rested on the fiction of an assumed grant of the right. R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 established conclusively that the subjective belief of the user of the right was irrelevant. The focus should be on how the matter would have appeared to the owner of the servient land.In principle, an implied licence could be found where the facts justified it, but a landowner might conduct itself in such a manner as to make it clear, even in the absence of any express statement, that the inhabitants’ use of the land was pursuant to its permission. The correct approach was to determine the character of the acts of user or enjoyment relied on. If it amounted to an assertion of a continuous right, continued for the requisite period, were actually or presumptively known to the owner of the servient tenement and such owner did nothing, that would be sufficient: R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 EGLR 84 applied; R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11; [2010] 1 EGLR 153 considered.In the instant case, the assertion of a prescriptive right of way depended on use in the period after the freehold of the defendant’s land was transferred to it in 1980. There was nothing to suggest to the claimant that the identity of the owner of that land had changed and it therefore had no reason to resist or object to the continued user. The claimant believed that the defendant’s use of the road was pursuant to an earlier express licence.The right of way had been exercised over the road openly and continuously. The claimant had a copy of the 1973 licence and therefore had the opportunity take appropriate legal advice. Had it done so, it would have discovered that it was a personal licence; thus, that the use of the road could not be pursuant to the 1973 licence if there had been a change in the corporate ownership of the defendant’s land. It appeared that no one had looked at the licence or made such enquiry until later. Accordingly, the fact that the change in the corporate ownership of the defendant’s land might not have been obvious did not preclude the inference of acquiescence on the part of the claimant such as to establish a prescriptive right.The defendant had acquired by a lost modern grant, on the basis of 20 years’ use since 1980, a right of way over the access road. Since there was no evidence that private cars, taxis or minicabs carrying guests of the defendant had used the road, and since such use could increase the density of traffic and the problems of congestion that had occasionally occurred, the court would hold that the right of way acquired by prescription was for commercial vehicles and coaches only.Jonathan Gaunt QC and Kenneth Munro (instructed by Laytons) appeared for the claimant; Nicholas Dowding QC and Stephen Jourdan QC (instructed by Payne Hicks Beach) appeared for the defendant.Eileen O’Grady, barrister