Posts Tagged ‘prescription’

Right of way and lost modern grant

February 7, 2019

Introduction

In Yik Wai Pong v Yick Pak Kin the Court of First Instance was asked to consider whether the plaintiff had acquired a right of way over an access road on the defendant’s land under the doctrine of lost modern grant.

Facts

The plaintiff and defendant were relatives and owned neighbouring areas of land. The plaintiff claimed to have acquired a right of way over an access road on the defendant’s land leading to the public highway.

The law

Wilson Chan J. summarised the relevant principles:

‘(1) If the owner of land uses a road as a means of access to, and egress from, his land for more than 20 years “as of right”, then, at least in the absence of special circumstances, he will obtain a right of way over the land for the benefit of his land.
(2) Whether the use is “as of right” depends on the claimant showing that it had been nec vi (without force), nec clam (without stealth) and nec precario (without permission from the owner).’ (at [73])

Reasons for the failure of the claim

Failure to establish user for a 20 year period

The plaintiff lived in the UK until 2002, only visiting the property for a week or so every few years. This was not sufficient user of the road to count for this purpose. The relevant use only began in 2002 and so the twenty year period had not been completed.

User with consent

It was doubtful whether even the post 2002 use was ‘as of right’. There was an implicit permission given the family relationship between the plaintiff and defendant ([79]).

The defendant gave the plaintiff a key so that the plaintiff could use the access road. In providing this key, the defendant could be said to be giving express permission for the plaintiff to use the road ([79]).

Michael Lower

 

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Easement by prescription to create a noise that would otherwise be a nuisance. Private nuisance and the public interest

September 29, 2014

In Lawrence v Fen Tigers Ltd ([2014] AC 822, SC) (Coventry v Lawrence) C used former farmland near a village for speedway and similar types of racing. The land used as the stadium had planning consent for the various types of races held there. A succession of temporary consents began in 1992 ending when permanent planning permission was granted in 2002. L was a resident in the village having moved there in 2006. L brought an action in nuisance because of the noise caused by racing and ancillary activities at the stadium. The Supreme Court decided that the judge at first instance had been right to find that the noise was a nuisance and that C had not acquired an easement by prescription entitling it to make the noise that was complained of (although the acquisition of such an easement was legally possible). The fact that the defendants had planning permission to carry on the noisy activity did not settle the question as to whether or not there was a private nuisance.

This note relies principally on the judgment of Lord Neuberger. Although the other judges agreed with him in general there were differences of approach on some issues.

Can an easement to commit what would otherwise be a nuisance by noise be acquired by prescription?

Lord Neuberger held that it is possible to acquire an easement to carry on an activity which results in noise ([33]) and it can be acquired by prescription ([37]). But it is not enough to show that the noise has been created for 20 years. It must also have constituted a nuisance during that time ([42]). Otherwise, the servient owner would not know that a claim was being made against his land ([43]).

Coming to the nuisance

It was no defence to say that the claimant came to the nuisance where the claimant continues to use the property in the way that it had previously been used by her predecessors ([51]). It may be different where the claimant built on the land or changed the use to which it was put after the alleged noise nuisance had started ([56]).

Reliance on the defendant’s own activities in defending a nuisance claim

The character of the locality is an important consideration in nuisance cases ([59]). The court has to have regard to ‘the established pattern of uses’ ([60]). On this basis, the defendant’s own activities clearly should be taken into account ([63]) to the extent that they have become part of the character / established pattern of uses but not to the extent that there has been some change / intensification that might constitute a nuisance ([65]). Even where it was originally a nuisance, the right to make the noise might have been acquired by prescription or sanctioned by a previous decision to award damages rather than an injunction for the breach ([69]). See also Lord Carnwath (at [187]).

The effect of planning permission on an allegation of nuisance

Lord Sumption explained the importance of this issue and the next (remedies):

‘It is, I think, worth pointing out that the question what impact the grant of planning permission should have on liability in tort for private nuisance and the question what remedies should be available for a nuisance are closely related. They both raise a broader issue of legal policy of some importance, namely how is one to reconcile public and private law in the domain of land use where they occupy much the same space?’ ([155]).

It is normally not a defence ([94]) but neither is it irrelevant; it may have evidential value ([96]).

The award of damages instead of an injunction

The role of this issue in the general scheme or design of the law in this area is explained thus:

‘What saves, or could save the law from anomaly and incoherence is the court’s discretion as to remedies. An injunction is a remedy with significant side-effects beyond the parties and the issues in the proceedings. Most uses of land said to be objectionable cannot be restrained by injunction simply as between the owner of that land and his neighbour. If the use of a site for (say) motocross is restrained by injunction, that prevents the activity as between the defendant and the whole world. Yet it may be a use which is in the interest of very many other people who derive enjoyment or economic benefits from it of precisely the kind with which the planning system is concerned. An injunction prohibiting the activity entirely will operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account. The obvious solution to this problem is to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property. In a case where planning permission has actually been granted for the use in question, there are particularly strong reasons for adopting this solution. It is what the law normally provides for when a public interest conflicts with a proprietary right.’ (Lord Sumption at [157]).

An injunction had been granted at first instance. C now contended that damages should be awarded instead. This issue and the question as to how damages should be assessed was an issue in all but one of the judgments. The Supreme Court clearly saw this as an important issue and an area that needed to be settled. Lord Neuberger envisaged that it would be argued and considered more fully in later proceedings ([152]).

Michael Lower

Acquisition of right of way by prescription

June 19, 2013

In Cheung Yuk Ying v Lo Koon Fuk ([2013] HKEC 932, CFI) the path leading from P’s house to the public footpath crossed the land of a Tso (represented by D). P’s land was landlocked and P claimed a right of way by prescription under the doctrine of lost modern grant. This succeeded. The path over D’s land had been used as the access between P’s property and the public footpath ‘on a reasonably regular basis’ (though perhaps not continuously) since at least the 1940s. On that basis, the doctrine of lost modern grant applied ([146] – [147]). The fact that the house was in ruins between the mid 1950s and the mid 1990s did not matter since the path was still used as an access to the property (perhaps as a way of getting to a chicken farm beyond it) during that time. The fact that, for much of that time, the occupiers and owners were all likely to have been members of the Tso did not mean that the use of the path was a private privilege reserved for members of the Tso.

The court considered, and seems to have been inclined to accept, a second and independent basis on which the easement might have come into existence. There was a re-grant of all Government leases in the New Territories in 1973 (New Territories (Renewable Government Leases) Ordinance) and all Government leases in the New Territories had been extended in 1997 (New Territories Leases (Extension) Ordinance). P’s land was land-locked. The grant of the claimed right of way could be implied on the basis of necessity on the re-grant or extension of the lease of P’s land (with a corresponding reservation on the re-grant or extension of the lease of D’s land). Alternatively, the rule in Wheeldon v Burrows or section 16 of the Conveyancing and Property Ordinance could result in the implied grant of an easement based on the then existing use of the path as a means of access from P’s land to the public footpath.

Michael Lower