Summary

A hotel owner had acquired a right of way by prescription over a private roadway, having openly used it without permission for over 20 years. The hotel owner was entitled to rely upon the use of the roadway by third parties, such as coach drivers, in its claim for a prescriptive right.

Facts

The appellant (L) appealed against a decision ((2010) EWHC 2749 (Ch), (2010) 45 EG 92 (CS)) that the respondent hotel owner (K) had acquired a right of way by prescription over a private roadway between their properties. The original owner of K's hotel had obtained a personal licence from L to use the roadway from year to year, such use not extending to coaches. Ownership of the hotel was transferred in 1980, and the new owner continued to use the roadway for vehicular access, including access by coaches. Ownership changed again in 1996, when a hostile takeover attracted a great deal of publicity. K acquired the hotel in 2002. The judge found that the licence must have lapsed in 1980. A licence could not be implied in the circumstances and K's subsequent use of the roadway was therefore without permission. He concluded that an easement existed because K and its predecessors had used the roadway openly, as if of right, without force and without permission for over 20 years. L submitted that it could not acquiesce in something of which it was ignorant, and it had neither known nor had reason to believe that the ownership of the hotel had changed in 1980. L also argued that the use of the roadway by coach drivers was not use by K.

Held

(1) "As of right" was sufficiently described by the tripartite test nec vi, nec clam, nec precario : not by force, nor stealth, nor the licence of the owner. There was no further criterion that had to be satisfied because once those three criteria were established, it was reasonable to expect the landowner to challenge the use, R v Oxfordshire CC Ex p Sunningwell Parish Council (2000) 1 AC 335 HL, R (on the application of Beresford) v Sunderland City Council (2003) UKHL 60, (2004) 1 AC 889 and R (on the application of Lewis) v Redcar and Cleveland BC (2010) UKSC 11, (2010) 2 AC 70followed. L therefore had to show that the use of the roadway by K and its predecessors was with force, stealth or permission, when judged by the actual use as viewed from the perspective of a reasonable person in L's position (see paras 24-29, 74 of judgment). (2) It was common ground that the use of the roadway was not forcible (paras.29, 75). (3) There was nothing secret about the way in which K and its predecessors had used the roadway. To succeed on the issue of stealth, L would have to establish that a use could be clam simply if the identity of the person enjoying the use was unknown to the owner of the putative servient land. The court was prepared to assume that that could be so, but that argument was not made out on the facts of the instant case. There was no suggestion that K or its predecessor had deliberately concealed the change of ownership from L. Further, the use of the roadway by coaches had gone beyond the scope of the licence and should have triggered an enquiry by L (paras 35-37, 83-84). (4) L had chosen to grant a licence which lasted only so long as the properties remained in the respective ownerships of the parties to the licence. The licence therefore ended in 1980. It was true that any such withdrawal of permission was in a sense implied, because the licence did not expressly provide for its determination upon the owner transferring the hotel, but that was the undoubted effect in law of the arrangement in question. Given the judge's finding that after the licence expired, there was no grant of a subsequent licence, the use of the roadway by K and its predecessors could not be said to have been with permission. Therefore, subject to any other argument, as a result of more than 20 years' use, a prescriptive right of way arose. That was not a particularly unjust or surprising result. Where a landowner granted a personal right to a licensee to pass over his land and he wished to ensure that a prescriptive right was not acquired, all that was required of him was to check every 18 years or so that the licensee remained the owner of the putative dominant land, Union Lighterage Co v London Graving Dock Co (1902) 2 Ch 557 CA applied (paras 31-33). (5) The use of the roadway by third parties, such as coach drivers, did not disentitle K, as owner of the hotel, from relying on that use to found a prescriptive right of way (paras 45, 48, 90).

Appeal dismissed