London Tara Hotel Ltd v Kensington Close Hotel Ltd

Right of way – Prescription – Lost modern grant – Appellant company owning access road – Previous owner of respondent’s land using access road under personal licence – Respondent’s predecessors in title continuing to use access road after expiry of licence – Appellant seeking injunction restraining respondent from trespassing on access road – Whether respondent having prescriptive right to use access road – Appeal dismissedThe appellant and the respondent owned adjacent hotels; the respondent had purchased its hotel 2002. A private service road that skirted the respondent’s main building was on land belonging to the appellant. The respondent and its predecessors had been using the road since the appellant’s hotel was constructed and the respondent asserted that it had acquired the right to do so.In 1973, the then owner of the site of the appellant’s hotel had granted the then owner of the respondent’s hotel a personal licence to use the road (the 1973 licence). The licence expired in 1980, when the respondent’s hotel changed ownership. However, the access road continued to be used for deliveries and by coaches taking passengers to the respondent’s hotel. That use continued until 2007, at which time the appellant asserted that the respondent had no rights of access over the access road and that its use by the respondent and its agents was a trespass that should cease with immediate effect.The appellant subsequently applied for an injunction restraining the respondent from trespassing on the road, together with damages. The respondent argued that it had acquired an easement by prescription over the access road. The High Court refused to grant the injunction concluding that the respondent had used the roadway for 20 years or more without force, openly and without the permission of the owner and so had established a right of way by prescription over a private roadway: [2010] EWHC 2749 (Ch); [2010] PLSCS 281; [2010] 45 EG 92 (CS).The appellant appealed, arguing that: (i) the judge had wrongly concluded that the use of the road had been “as of right” since the appellant had had no reason to believe that the ownership of the respondent’s hotel had changed; (ii) the correct inference was that a fresh licence had been granted in 1980, which only expired in 1996 on the next change of ownership; and (iii) even if a right of way by prescription had been obtained, it did not extend to coaches or construction vehicles. Held: The appeal was dismissed.(1) To establish a prescriptive right of way, the use had to be such as to make it appear to the reasonable landowner that the person using the road was asserting a right to do so without permission, as well as there being no permission in fact. If a use satisfied the tripartite test of not being by force, by stealth, or by licence, a prescriptive right would be established and the owner would be taken to have acquiesced in the use: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 and R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 EGLR 94 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 appellant had chosen to grant a licence, which, by definition, only lasted so long as the hotels remained respectively in the ownership of the parties to the licence. The licence therefore ended in 1980 because the appellant was not prepared to allow or permit the arrangement to continue thereafter. Given the judge’s finding that, after the licence expired, there had been no grant of a subsequent licence, the use of the road could not be said to be with permission and a prescriptive right of way arose.(2) Whether a licence was to be implied was a question of fact. An implied licence had to be distinguished from mere inaction by the landowner with knowledge of the use relied on. There had to be some overt act, which might be a non-verbal communication, intended to be understood as permission to do something that would otherwise be an act of trespass.In the instant case, the judge had correctly directed himself that acquiescence or toleration was not sufficient and subsequently found that there was nothing more than that in the evidence. They were conclusions of fact that the judge was entitled to reach having applied the correct legal test. (3) The judge had been entitled to conclude that a prescriptive right of way for coaches and construction vehicles had been established. The fact that only independent contractors, such as service providers and tradesmen, used a secondary means of access did not prevent their use giving rise to a prescriptive right. The appellant had accepted that the prescriptive right of way extended to vehicles that needed access to the respondent’s property to carry out substantial repair work and it was artificial and unrealistic to conclude that the right did not extend to vehicles needing access for more extensive work. Furthermore, the scope of the exclusion would be difficult to define.Jonathan Gaunt QC and Mark Wonnacott (instructed by Mishcon de Reya) appeared for the appellant; Nicholas Dowding QC and Stephen Jourdan QC (instructed by Payne Hicks Beach) appeared for the respondent.Eileen O’Grady, barrister