Making Land Work: Easements, Covenants and ... - Law Commission

servient land is used in that sense.
3.125 The use must be continuous. That term does not carry the technical meaning that
it has under the Prescription Act 1832; as in the current rules for common law
prescription and lost modern grant there is no provision for interruption. This is
consistent with the law of adverse possession: if a squatter is ejected, for
however short a period, the period of adverse possession built up before that
date will not avail the squatter in a future claim. 127
3.126 However, the continuous use need not be by one and the same person. As in the
current law, provided there is no interruption during the prescription period, that
period can be made up of the total unbroken consecutive use of the servient land
by the claimant and his or her predecessors in title.
3.127 The meaning of “without force, without stealth and without permission” is wellestablished
and represents no change from the current requirements. We have
chosen to use the term “permission” because it expresses the current
requirement more precisely than does the word “consent” (which is perhaps
rather more easily confused with acquiescence). 128
3.128 As this is an entirely new scheme of prescription, the qualifying minimum period
of long use could have been of any length. We sought, and received, suggestions
on duration from consultees. There was no clear consensus although there was a
general feeling that 20 years was appropriate, having the benefit of familiarity
from the current law. 129
3.129 The scheme replicates the current rule about criminal activity. This is expressed
in the draft Bill by the requirement that the qualifying use must be of a kind in
relation to which an easement could have been granted. 130 A purported grant of a
right of way, for example, which breached the criminal law, would be unlawful
“and incapable of vesting any right in the grantee” 131 – unless, as in Bakewell
Management Ltd v Brandwood, that grant would have meant that the use was not
127 Nor does the scheme incorporate any special protections to replicate sections 7 and 8 of
the Prescription Act 1832. These provisions are uncertain in scope, rarely invoked, and
complex, and we see no need to perpetuate them.
128 There is authority for the use of the word “licence”: in R v Oxfordshire County Council, ex
parte Sunningwell Parish Council [2000] 1 AC 335, 350, Lord Hoffman referred to use that
was “not by force, nor stealth, nor the licence of the owner”. In R (Lewis) v Redcar and
Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 2 AC 70 at [20] (by Lord
Walker) and [87] (by Lord Rodger) the word “licence” was also used. We prefer, for the
future, the term “permission” as being closer to ordinary language.
129 See the Analysis of Responses, paras 4.127 to 4.136.
130 Draft Bill, cl 17(1)(a).
131
Bakewell Management Ltd v Brandwood [2004] UKHL 14, [2004] 2 AC 519 at [39] by Lord
Scott.
53