No, for most owners. Kingdom Hall Trust v Davies [2026] EWCA Civ 1377, handed down by the Court of Appeal on 2 November 2026, narrows the doctrine of lost modern grant. Most rights of light rest on section 3 of the Prescription Act 1832, which creates the right by statute and involves no presumed grant, so a standard light claim is untouched.
The judgment still matters at the margins: claims pushed back onto lost modern grant because the section 3 timeline is broken, development sites held by charities or other bodies that cannot grant an easement, and ownership chains with a gap in the middle. Those cases are a minority, but they are real, and they are now harder to win.
The key points:
- A lost grant can only be presumed at a time when the use was actually happening, by an owner who could lawfully have made it.
- Section 3 of the Prescription Act 1832 does not depend on a grant or on the servient owner's capacity, so charity-owned sites are as exposed to light claims as anyone else.
- Where a claim has to fall back on lost modern grant, the ownership history of the developer's site now decides whether it survives.
What happened in Kingdom Hall Trust v Davies?
A neighbour of the Telford Kingdom Hall of Jehovah's Witnesses had driven and walked across its car park, openly and as of right, from 24 August 1977 to 11 February 2021. He lost, because for the whole of that period the hall was charity land and the charity could not have granted him an easement.
The dates are the whole case. The two properties were in common ownership until 10 February 1958, when the house was sold off and the future hall was still a cinema. On 17 July 1967 the hall was conveyed to trustees of the local congregation on express charitable trusts, and it has been charity land ever since. Section 29 of the Charities Act 1960, in force for most of the period, prohibited any disposal of the land without a court order or the consent of the Charity Commissioners, and both sides accepted that an easement, real or fictional, is a disposal.
Both the First-tier Tribunal and the Upper Tribunal ([2025] UKUT 294 (LC)) got round that by presuming a lost grant made at some point between 1958 and 1967, when the land was in private hands, about ten years before anyone started using the way. They relied on a sentence in Tehidy Minerals v Norman [1971] 2 QB 528 which, read literally, allows a grant by anyone who could have made one at some time before the 20-year period started. Nobody argued that a lost court order or Charity Commission consent could be presumed, so the appeal proceeded on the footing that it could not.
What did the Court of Appeal decide?
Lewison LJ, with Males and Miles LJJ agreeing, allowed the charity's appeal. Five points carry the decision.
- Lost modern grant rests on acquiescence. The servient owner must have known of the use, had the power to stop it, and chosen not to. The grant is presumed to give long use a lawful origin, not to rewrite history (paras 15 to 17, 73 and 81).
- The presumed grant must sit at the beginning of, or during, the period of use relied on, and the person presumed to make it must have been competent at that time (paras 51, 61, 76 and 81). Tehidy itself fits that rule: the grazing grants there were presumed in 1920 to 1921, inside the period of proven use.
- The wider reading of the Tehidy sentence was obiter, had no support in earlier authority, contradicted Roberts v James (1903), which Tehidy had not cited, and cut against the acquiescence principle on which the doctrine rests (paras 63 and 79 to 80).
- The window argument fails. There was a period from 1958 to 1967 with a competent owner, but no use was happening for that owner to acquiesce in, so no grant can be attached to it (paras 45 and 78).
- Oakley v Boston [1976] QB 270 still governs where a grant needed an outside consent. There it was the Ecclesiastical Commissioners; here it was the court or the Charity Commission. The court will not presume the consent was given (paras 41 to 44).
Males LJ added that the result seems harsh after almost half a century of open use, that lost modern grant is a fiction nobody believes in, and that modernising it is a job for Parliament (paras 89 to 90).
Why are rights of light different?
Because section 3 of the Prescription Act 1832 creates a right of light by statute, not by presuming a grant, so the capacity of the servient owner is irrelevant to it.
There are three routes to an easement by long use: prescription at common law (use since 1189, presumed from 20 years but easily rebutted), lost modern grant, and the 1832 Act. For ways, water and support the Act works through section 2, and section 2 is expressly confined to claims that could lawfully be made by grant. That is why the capacity cases (the canal companies, the Wimbledon Conservators, glebe land) apply under section 2 as well as under lost modern grant.
Light is treated differently. Section 3 says that once light has been actually enjoyed by a building for 20 years without interruption, the right is absolute and indefeasible, unless the enjoyment was by written consent. There is no requirement that the use be as of right, no reference to a grant, and no need for anyone to have had the power to grant anything. The disability and tenancy exclusions in section 7 do not touch a right the Act declares absolute, and section 8 applies only to ways and watercourses. Light under section 3 runs against a let site, even where both buildings belong to the same landlord (Morgan v Fear [1907] AC 425). The Supreme Court made the same point in R (Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7, describing the capacity rule as one that applies to private easements "other than access of light".
Nothing in the Act exempts charities. A church, an almshouse trust, a school, a charitable housing trust or any other charity that owns a development site is as exposed to a section 3 light claim as any other landowner. Kingdom Hall gives those bodies a real defence to claimed rights of way and similar easements. It gives them nothing against light acquired under section 3.
The one owner section 3 cannot bind is the Crown. The Act does not bind the Crown, and the Court of Appeal revisited the leading light case on that point, Wheaton v Maple & Co [1893] 3 Ch 48, where a lost modern grant claim for light also failed because the enjoyment had never been against the Crown itself (paras 73 to 74).
Where does the judgment bite for light claims?
Lost modern grant still gets pleaded in light cases, and those are the claims this judgment makes harder.
1. When the section 3 clock is broken. Section 4 counts the 20 years back from the claim, so the enjoyment has to run right up to the action. An interruption acquiesced in for a year, such as an unchallenged light obstruction notice under the Rights of Light Act 1959, breaks the chain even if the light had been enjoyed for 40 years before it. The usual fallback is lost modern grant based on an earlier 20-year period, which was exactly the position in Tehidy, where the Prescription Act claim failed on the next-before-action rule. After Kingdom Hall that fallback needs a competent grantor during the period of use relied on, not merely at some point in the site's history.
2. When the site was owned by a body that could not grant. Charity land under the Charities Act regime is the headline example. Land in strict settlement, glebe land, land vested in a statutory body with limited powers, and land in Crown hands all raise the same problem. A light claim against such a site that cannot be put squarely under section 3 is in difficulty.
3. When the title has a gap. A Crown period and a charity period cause different problems. The Act does not bind the Crown, so section 3 cannot run against the Crown, and whether years in Crown hands can be counted once the land has passed on is not settled. A charity period does nothing to section 3, but it is a period with no competent grantor, so it is dead time for a lost modern grant claim. Either way, the safe claim is 20 years' enjoyment that does not depend on the gap. Kingdom Hall closes the shortcut of pointing to an earlier competent owner and saying a grant could have been made then; the use has to have been happening at the time, against that owner.
4. The window argument is dead. If the owner was incapable for the whole period of use, it does not help that an earlier owner, before the use began, could have granted.
What did the court leave open?
Three points were not decided, and each could matter in a light claim.
- Use that starts against a competent owner and continues against an incompetent one. The charity argued that any period of use against an incompetent grantor simply drops out of the calculation. Lewison LJ was not convinced, pointed to Cross v Lewis and Pugh v Savage [1970] 2 QB 373, where a tenancy granted part way through the use did not defeat the claim, and left the point open for a case where it matters (paras 83 to 86). For a claim with a gap in the title, this is the question.
- Whether a lost consent or court order can ever be presumed. It was common ground, not decided, that the charity was an incompetent grantor and that a Charity Commission consent could not be presumed. The editors of Megarry & Wade doubt Oakley v Boston on that point, and the court said it had not been asked to consider the doubt (para 67).
- The modern Charities Act regime. Since 1992 (now the Charities Act 2011, as amended in 2022) charities can make many dispositions without any outside consent if the trustees take a surveyor's advice, advertise and satisfy themselves the deal is in the charity's interests. The court said the detail did not matter here (para 8). Whether a trustee self-certification regime still leaves a charity without a competent grantor in the Oakley v Boston sense has not been tested.
Reform, if it comes, is for Parliament. The Law Commission recommended in 2011 that use against a freeholder who cannot grant should not count at all, and Males LJ said modernising the doctrine was Parliament's job, not the court's.
What should owners and developers do about it?
The practical question is which route your claim is on, and that is answered by dates and title, not by this judgment.
For owners facing a development:
- Get the basis of the right identified at the outset. If your windows have enjoyed the light for 20 years up to now, with no interruption and no written consent, you are under section 3 and Kingdom Hall is irrelevant to you.
- Check the age of the apertures and the continuity of enjoyment. The weak point in a section 3 claim is the timeline, not the law.
- Have the ownership history of the developer's site checked. A charity, a Crown body or a statutory undertaker in the chain changes the analysis, and the point to find is whether your enjoyment was running while a competent owner held the land.
- Do not sit on a claim. Section 3 counts backwards from the action, so delay and an unchallenged light obstruction notice are the two things most likely to push a claim off section 3 and onto lost modern grant. We have written before about what waiting costs.
For developers and charities:
- Kingdom Hall is a genuine shield against claimed rights of way and similar easements over charity land. It does not extend to light. Do not price a scheme on the assumption that it does.
- If a neighbour's light claim is pleaded on lost modern grant rather than section 3, ask why. The answer is usually a timing problem, and this judgment makes that problem worse for them.
Common questions
Does Kingdom Hall Trust v Davies mean a charity can never be subject to a prescriptive easement?
No. The decision is about lost modern grant where the land was charity land for the whole period of use and no consent could be presumed. A right of light under section 3 of the Prescription Act 1832 needs no grant and no competent grantor, so it can be acquired over charity land in the ordinary way.
Does the ruling affect a right of light that has already been acquired?
Not if it rests on section 3. A light claim that depends on lost modern grant, usually because the section 3 timeline has been broken, now has to show use against an owner who could have granted at the time. The judgment changes how that fallback is argued, not the underlying right under the Act.
Does the judgment change how compensation is calculated?
No. It goes to whether a right exists, not what it is worth. Once a right of light is established, the measure of compensation and the injunction question are unchanged. See our guide to how right to light compensation is really calculated.
Where this leaves you
Kingdom Hall Trust v Davies is a significant case for rights of way over charity land and a small one for rights of light. If your claim is under section 3, nothing has changed. If it is not, the ownership history of the site next door has just become the first question, and the sensible step is to have the basis of the right and that history checked before anyone writes to the developer. You can start a claim and have that assessed at no cost to you.
This article is general information about the law in England and Wales, not legal advice. Outcomes always depend on the facts.
Joshua Platt BSc (Hons) MRICS, Director, Daylight Protect
Daylight Protect is a rights of light claims specialist operating across England and Wales. We provide a fully funded solution that covers everything end to end, the surveyor, the solicitor, counsel and court fees, backed by legal insurance that covers the developer's costs if a claim does not succeed. There is no recovery, no fee, and no costs to you either way. We tell you plainly when you have a claim, and just as plainly when you do not.
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