Ching To Yuen Limited v Pristine Villa (IO) ([2025] HKCFI 388) concerned the use by Ching To Yuen Limited (‘P’) and its visitors / licensees of an access road on the neighbouring Pristine Villa estate (‘D’).
P began to use its land as a columbarium in 2005. From 2006, P operated shuttle buses between Tai Wai MTR and the columbarium using the access road.
Traffic could get very heavy on the Ching Ming and Chung Yeung festivals leading D to make regular complaints to government authorities.
D controlled P’s use of the access road and blocked P’s use of it entirely on some occasions.
P sought declarations that: (a) the access road had been dedicated as a public right of way; or (b) that D had acquired a right of way under the doctrine of lost modern grant because of their long usage of the access road.
D successfully counterclaimed for a declaration that P had no right of way over the access road for vehicular traffic.
D’s claim that P’s use of its land as a columbarium amounted to a nuisance was also successful.
D also argued that any easement over the access road had been extinguished because of the radical change in use of P’s land that begain in 2005. Had it mattered, the court would have found in D’s favour in this regard as well.
Public right of way?
The relevant principles concerning dedication as a public highway are found in Kong Sau Ching v Kong Pak Yan ([2004] 1 HKC 119).
Dedication can be formal or it can be inferred from long user by the public (Kong Sau Ching, [14]).
Formal dedication was not alleged in this case. Was there a presumption of dedication from long user?
Deputy High Court Judge Jonathan Wong remarked:
‘To raise such a presumption, it is necessary to show that there is open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right.’ ([4.3])
In addition:
‘it is necessary to show that the Government as reversioner under the relevant Government Lease has consented to a dedication, which consent may be inferred.’ ([4.4])
Neither requirement was satisfied.
D regulated the use of the access road by third parties and exercised control over it. This made it more likely that D simply tolerated third party use of the road.
On the second requirement, far from consenting to dedication, the Government repeatedly opposed the idea.
Easement through the doctrine of lost modern grant?
The right claimed satisfied the Re Ellenborough Park requirements; it was capable of being an easement.
Had P acquired an easement through their long user of the access road?
The principles governing the doctrine of lost modern grant are set out in the judgment in Lee Kok Che v Royal Mortgage Limited ([2023] HKCFI 648 at [34] – [39]).
The doctrine requires:
- 20 years’ user;
- Not by force, stealth or licence of the owners.
The requirements were not satisfied in this case.
The fact that there were ‘private road’ signs on the access road was relevant.
Use of the road by residents on P’s land or their visitors up to 2004 ‘would have likely been no more than sporadic, tolerated out of neighbourly good relations, and / or resulting from temporary permissions from D.’ ([6.5]).
Thus, it seems that the usage may have been enjoyed by virtue of D’s permission or licence.
This only changed in 2006 when P began to run shuttle buses along the access road. Twenty years have not yet elapsed.
Had any easement been extinguished?
If the court was wrong to find that no easement had been granted, the question arose as to whether any easement had been extinguished because of the change in character of the use to which P put the land.
Deputy High Court Judge Jonathan Wong would have found that the easement had been extinguished because the use of the shuttle buses represented a substantial increase in the burden on the access road ([6.10]).
Was P liable in private nuisance?
There was clearly liability in trespass. Did D also have a claim in private nuisance because P’s lawful use of its own land resulted in physical damage to D’s land?
Unauthorised use of the access road by visitors to P’s land amounted to private nuisance since this use had caused physical damage to the access road ([7.3]).
Michael Lower
**Disclaimer**: The information provided on the Hong Kong Land Law blog is for educational purposes only. It is intended to offer a general understanding of the cases or issues discussed, not to provide specific legal advice. Readers should not act upon this information without seeking professional legal advice. The views expressed are my own and do not necessarily reflect the official policy or position of any court or legal authority.