Brief Series on Navigating Tort Law: Prescription as a Defense

Introduction

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Unlike general defenses applicable across various types of wrongdoing, specific defenses are tailored to particular wrongs; for example, in cases of nuisance, unique defenses such as effectual and ineffectual defenses come into play. Similarly, in torts such as defamation and rules of strict liability, specific defenses exist. For instance, if the defendant persistently disrupts the plaintiff’s peaceful enjoyment of their property over twenty years, it may activate the doctrine of prescription. This legal principle grants the defendant an easement over the plaintiff’s land, allowing them to continue the contested activity. Prescription serves as a defense in claims of private nuisance, effectively shielding the defendant from liability. This is because the prescription essentially legitimizes the defendant’s previously objectionable behavior as an acceptable use of the plaintiff’s land. Consequently, what was once viewed as an unreasonable intrusion on the plaintiff’s property rights, a fundamental aspect of the tort of private nuisance, becomes authorized by law.

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This same logic applies to cases of trespassing on land; in such situations, the doctrine of prescription can also bestow individuals with rights of way across another’s property. This legal principle underscores the significance of consistent use over time in establishing property rights, providing a mechanism for acquiring specific interests in land through prolonged occupation or activity. A person can acquire a legal right through prescription if they have continuously engaged in an activity on another person’s land for 20 years or more. In doing so, they acquire the prescriptive right to continue the activity in the future. Importantly, the period during which the nuisance occurs cannot commence until the act complained of begins to be a nuisance.

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Prescription Act

Section 2 of the UK’s Prescription Act 1832 plays a pivotal role in defining the conditions under which a right of way can be acquired through prescription. According to this section, if an individual has openly and continuously used a track for twenty years without any interruption and as of right, they may be entitled to establish a legal right of way over that track. This provision underscores the significance of consistent and unimpeded use of the track over a substantial period. It implies that the use of the track must be evident, without any secrecy or ambiguity. Moreover, the use must be continuous, meaning that there should not be any substantial breaks or interruptions in the individual’s utilization of the track.

Additionally, the use should be “as of right,” indicating that it must be done without force, secrecy, or permission from the landowner. The twenty-year timeframe specified in the Act serves as a benchmark, signifying the duration over which the user’s claim must be demonstrated. It reflects a substantial period during which the individual’s usage of the track becomes entrenched and establishes a customary right. This extended period further emphasizes the notion that the right of way is not acquired hastily or arbitrarily but is rather the result of longstanding and recognized usage. Overall, Section 2 of the Prescription Act 1832 provides a framework for individuals seeking to establish a legal right of way over a track through the doctrine of prescription. It highlights the importance of continuous, open, and uninterrupted use over a significant period, ultimately serving to safeguard property rights and facilitate the orderly resolution of land access disputes.

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Case Law

In the case of Sturges v. Birdman (1879), the plaintiff, a physician, did not initially object to the defendant, a confectioner, operating a kitchen in the rear of his house, which was adjacent to the plaintiff’s residence. Despite the kitchen’s activity for over 20 years, the noise did not pose a problem for the plaintiff. However, when the plaintiff established a consulting room in his garden, he suddenly began to experience significant disturbance from the noise and vibrations emanating from the kitchen, which interfered materially with his medical practice. Consequently, the plaintiff sought relief from the court, requesting an injunction against the confectioner. The court ruled in favor of the plaintiff, denying the confectioner’s claim for a prescriptive right. This decision was based on the fact that the interference had not constituted an actionable nuisance during the preceding 20-year period.

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In ?Davis v Whitby [1974] 1Ch 186, 1 All ER 806), Lord Denning MR articulated the principle that “the long user as of right should by our law be given a lawful origin if that can be done.” This statement underscores the judicial inclination to confer a legal basis to the prolonged use of property rights, provided it aligns with legal principles. Stamp LJ, concurring with Lord Denning, further elaborated that “if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin.” ?This suggests that the courts will endeavor to uphold established property rights by presuming their legitimacy, particularly when supported by extended periods of unchallenged use. ?

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The decision of the Court of Appeal in Hanning v Top Deck Travel Group Limited [1993] 68 P and CR 14? shed light on the limitations of acquiring a right of way through uninterrupted use, particularly when such use violates statutory regulations. In this case, the defendant company had been enjoying uninterrupted use of a right of way for a period exceeding twenty years. However, the court held that despite the lengthy duration of use, the defendant could not acquire a legal right of way. This was because the use had been prohibited by statute at the time it took place. The ruling underscores the principle that statutory regulations take precedence over common law doctrines such as prescription. Even if the conditions for acquiring a right of way through prescription, such as twenty or more years of uninterrupted use, are met, if the use is contrary to statutory provisions, the acquisition of the right may be invalidated. This decision highlights the importance of compliance with statutory requirements when seeking to establish property rights through long-term usage. It emphasizes that adherence to legal regulations is essential, and mere duration of use alone may not suffice to establish a legal right if such use contravenes statutory mandates.

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In the case of R v Oxfordshire CC, ex parte Sunningwell PC [2000] 1 AC 335; Sunningwell, Oxfordshire, a glebe was a spacious area commonly utilized by residents for outdoor activities. In 1978, ownership of the glebe was transferred to the Oxford Diocesan Board of Finance. Subsequently, in 1994, the Board obtained planning permission to construct two houses along the northern boundary of the glebe. However, this proposal faced opposition from the local community. In response, the Sunningwell Parish Council (SPC) sought to register the glebe as a village green under Section 13 of the Commons Registration Act 1965 through the Oxfordshire County Council (OCC). This registration aimed to prevent the proposed development under Section 29 of the Commons Act 1876. SPC’s application was based on the definition of a village green under section 22(1)(b) of the Commons Registration Act 1965, which refers to land used by the inhabitants of a locality for sports and pastimes for at least 20 years. However, OCC rejected SPC’s application, citing the precedent set in R v Suffolk County Council, ex parte Steed (1996) 75 P & CR 102. In the Steed case, it was held that for the use of land to constitute “as of right,” it must be exercised under the belief that it was enjoyed exclusively by the inhabitants of the local village. Although the inhabitants of Sunningwell believed they had the right to use the land, it was found that this use was not confined solely to them. The central issue in R v Oxfordshire County Council, ex parte Sunningwell, was whether the use of the land “as of right” had to be carried out with the belief that the inhabitants of Sunningwell exclusively enjoyed it. Ultimately, the court ruled in favor of SPC, overturning the precedent set in the Steed case. The court held that users of the land could not be discounted simply because many were indifferent to the existence of the right over time. The court applied the common law doctrine of “nec vi, nec clam, nec precario,” which translates to “neither by force, nor stealth, nor the license of the owner,” indicating that use of the land need not be exclusive to the inhabitants of Sunningwell to qualify as “as of right.” As a result of this decision, OCC was unable to reject SPC’s application solely on the grounds that the villagers did not believe the right to use the land was confined to them exclusively.

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In the case of Bakewell Management Ltd v Brandwood [2004] UKHL 14, the appellants sought to assert their respective rights of way over tracks traversing a common area. They invoked both section 2 of the Prescription Act 1832 and the precedent set in the Hanning case to support their claims. However, their claims were ultimately unsuccessful. The appellants relied on section 2 of the Prescription Act 1832, which establishes conditions for acquiring rights of way through long-term, uninterrupted use. According to this provision, if a person has enjoyed a right of way without interruption for twenty years, they may acquire a legal right to it. However, their claim was evaluated in light of the precedent established in the Hanning case. The Hanning case established that a right of way could not be acquired through uninterrupted use if such use was prohibited by statute at the time it occurred. This principle was applied when evaluating the appellants’ claims in Bakewell Management Limited v. Brandwood and others. Despite the appellants’ argument that they had satisfied the conditions outlined in the Prescription Act 1832, their claims were unsuccessful because the use of the tracks in question was found to violate statutory regulations. As a result, the appellants’ claims to their respective rights of way over the tracks across the common were rejected. The case illustrates the importance of considering both statutory regulations and legal precedents when evaluating claims for property rights acquired through long-term use.