TSAN LUK YUK YIN v. THE SECRETARY FOR THE ENVIRONMENT, TRANSPORT AND WORKS

LDMR 3/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Miscellaneous Reference Application No. 3 of 2005

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DECISION

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1. This is an application by the Applicant for determination of compensation pursuant to sections 13, 27 and 29 of the Roads (Works, Use and Compensation) Ordinance, Cap. 370.  The Applicant is the former registered owner of Lot Nos. 288, 289 and 293 in D.D. 313, Tai O, Lantau Island, New Territories, Hong Kong (“the Lots”).

2. The Lots comprising building land and agricultural land were held under a Block Government Lease in D.D. 313 for a term of 75 years commencing on 1 July 1898 renewable for a further term of 24 years less the last 3 days.  The lease was further extended to 30 June 2047 under the New Territories Leases (Extension) Ordinance, Cap 150.  By a Notice of Resumption dated 24 April 1997 registered in the Land Registry with memorial no. 244069, the Government resumed the Lots.

3. The Lots are located at a slightly inclined area close to the waterfront to the North East of Lung Tin Estate, Phase II, which is a public housing estate completed in 1980.  They straddle a footpath (“the Footpath”) leading from Tai Ping Street in an area known as Yim Tin to another part of Tai O.

4. At the commencement of the trial of this application on 8 October 2007, the Respondent raised an issue on whether the Footpath is a public right of way by prescription.  As this issue will affect the Applicant’s proposed developments at the Lots and the assessment of compensation, the Applicant requested the Tribunal to determine this issue first as a preliminary issue.  We acceded to this request and ordered that the preliminary issue be determined first.

5. The preliminary issue is framed by the Applicant in the following term:-

“	Was the footpath lying on the subject Lots as at the date of resumption a public right of way by prescription?”

6. The parties did not call any oral evidence in relation to the preliminary issue, but just relied on the documents produced to make their submissions.  After hearing submissions from both parties on 8 & 9 October 2007, we reserved our decision on the preliminary issue.  The parties then sent in further written submissions on 11, 17 and 23 October 2007 and agreed that the Tribunal can read and consider these further submissions.  Having considered all the submissions, we now deliver our decision on this preliminary issue.

7. The Respondent’s case is that there is an easement by prescription in relation to the Footpath.  The Respondent relies on the judgment of Saunders J in China Field Limited v. Appeal Tribunal (Buildings), HCAL 2/2007 and Sun Honest Development Limited v. Appeal Tribunal (Buildings), HCAL 3/2007 (Heard together) (“the China Field case”) to say that a right of way by prescription can exist in Hong Kong and the Tribunal can simply look at plans and photographs without any oral evidence to determine whether an easement by prescription exists at the Footpath.

8. The Applicant, however, argues that the China Field case is not an authority for any general proposition that a right of way by prescription can always be proved by plans and photographs alone, and that the Respondent has simply produced insufficient evidence to establish an easement by prescription at the Footpath.  In particular, the Applicant contends that the Respondent has failed to identify the dominant tenements in question and has adduced no evidence of actual use by the owners of such dominant tenements.  The Applicant also contends that the Respondent has failed to prove any of the following elements, not to mention the state of mind of the users:-

(1)	Who were using the Footpath at the material times?
(2)	When did those people start using the Footpath?
(3)	How long had they been using the Footpath?
(4)	Did the owner of the Lots have any knowledge of the alleged use?
(5)	What acts or conduct of the owner of the Lots are relied upon to prove “acquiescence”?

9. First of all, we agree with the judgment of Saunders J in the China Field case that a right of way by prescription can exist in Hong Kong, even though the presumption of a lost modern grant could only be claimed by an owner of fee simple and all the land in Hong Kong (except St. John’s Cathedral) is leasehold (see Foo Kam Shing & Ors v. Local Printing Press Ltd (1953) 37 HKLR 201 and Tam Tim Fat & Anor v. Chan Fok Kei & Ors [1992] 2 HKLR 373).  We do not find it necessary to repeat everything said by Saunders J in his judgment, save that we agree with his observation and the ruling in this regard.

10. As to whether the Respondent has established easement by prescription with sufficient evidence, we are of the view that the photographs and the plans produced are already clear evidence of such an easement.  Although the China Field case is not an authority for any general proposition, in Regina (Beresford) v. Sunderland City Council [2004] 1 AC 889, the House of Lords gave the following judgments:-

“	It is clear law … that for prescription purposes under the Prescription Act 1832 … “as of right” means nec vi, nec clam, nec precario, that is, “not by force, nor stealth, nor the licence of the owner …” (per Lord Bingham)
“	Lord Hoffmann in the Sunningwell case [2000] 1 AC 335 made clear that the section 22(1) requirement of 20 years’ use as of right did not require the users of the land to give evidence of their personal belief in their right of use.  He said, at p 356:
	“	A person who believes he has a 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.”
	It is sufficient, therefore, if the use is “apparently as of right”.  But, of course, if the users do have a personal belief in their right to use the land, so much the better.” (per Lord Scott)

11. Thus, from the Beresford case, it is clear that it is not necessary to require the users of the land to give evidence of their personal belief in their right of use, and it is sufficient if the use is apparently as of right. 

12. The Applicant, on the other hand, refers to some other authorities such as Dalton v. Angus (1881) 6 App. Cas. 740, Megarry & Wade: The Law of Real Property, 6^th ed., para. 18-123 and Gale: Easements, 17^th ed., para. 4-89 to 4-90 to contend that “the claimant must prove not only his own user but also circumstances which show that the servient owner acquiesced in it as in an established right” and there must still be proof of the fact of user.  The Applicant argues that the Respondent has failed to produce any evidence of the use of the Footpath by the owners of the unidentified “dominant tenements” or acquiescence of such use (if any) on the part of the owner of the Lots.

13. Nevertheless, we agree with the Respondent that the authorities cited by the Applicant are all before the Beresford case.  They do not contradict the propositions laid down in that case.  As held in paragraph 45 of the judgment of the Beresford case, members of the public simply using the way following the examples of others who were using the way will constitute a use which is “apparently as of right”.

14. The photographs and the plans produced clearly show that the Footpath has been a way leading from one side of Tai O (downstream) to another (upstream), and the Footpath has been in existence for a very long time, which can be traced back to 1905.  There are no gates or other barriers to prevent the public or the neighbours to use the Footpath.  Even though there may be alternative routes going from one side of Tai O to another without passing through the Footpath, the Footpath is the most direct way.  It is not difficult at all for us to conclude that the public or the neighbours must have used the Footpath to gain access to the Lots and the neighbouring lots (Lot Nos. 290-292), or to pass through them all these years.  This is the most logical and reasonable presumption one can take from the evidence of the plans and the photographs, even though no oral evidence is given by anyone to that effect.

15. Moreover, Chesterton Petty Ltd., in preparing the building plans for the Applicant, retains a notional path at the Lots, which suggests that the Applicant acknowledges the rights of others to use the Footpath.  If there were no such understanding, there would be absolutely no reason to include the notional path.  The parties have argued whether the servient owner has the right to alter the route of a right of way.  It is clear to us that there was no such right to alter the route (see Greenwich NHS Trust v. London and Quadrant Housing Trust [1998] 1 WLR 1749).  In any event, it has no bearing on the preliminary issue we are dealing with at the moment.

16. Our conclusion that there is no need to have oral evidence is also supported by the case of Stafford v. Lee (1992) 65 P&CR 172, where an implied easement by common intention was found to be established without any oral evidence and with a 1955 deed alone as evidence.  The English Court of Appeal in that case rejected the submission that there was a lack of evidence of the intention of the parties to the deed on the intended use and concluded that “on the balance of probabilities, the parties can only have intended that it should be used for the construction of another dwelling to be used thereafter for residential purposes” and no other intention could reasonably be imputed to them.  Likewise, from the plans and photographs available and on the balance of probabilities, we find that the public and the neighbours of the Lots must have used the Footpath for many years and the easement by prescription must have established.  There could be no other reasonable interpretation that can be drawn from the documentary evidence.

17. To answer the specific questions raised by the Applicant, we are of the view that the answers are apparent from the plans and photographs.  The dominant tenements must be the neighbouring lots, such as Lot Nos. 290 to 292 in D.D. 313.  There are buildings on some of these lots.  It would not be reasonable to assume that no one would use these lots.  The presumption, on the balance of probabilities, should be that there are people using these lots.  So the fact of users is established.  The owners or occupiers of these neighbouring lots, as well as the other villagers of Tai O and the public, would be using the Footpath at the material times.  As the Footpath can be traced back to 1905, these people would have used the Footpath since about 1905.  So they had been using the Footpath for about a century.  The use of the Footpath would have been done openly and the owner of the Lots must have knowledge, actual or constructive, of such open use.  The retention of the notional path as aforesaid also establishes the knowledge of the owner.  The fact that there were no gates or other barriers to prevent people from using the Footpath and the absence of any other overt act show that there was acquiescence on the part of the owner of the Lots.

18. In the circumstances, we rule that the preliminary issue must be answered in the affirmative, i.e. the footpath lying on the subject Lots as at the date of resumption was a public right of way by prescription.

19. We also grant a costs order nisi that the Applicant do pay the Respondent costs of and incidental to the determination of the preliminary issue, with certificate for one counsel to be taxed on the High Court Scale if not agreed.  If there is no application for costs within the next 14 days, the costs order nisi shall become absolute.