The future of prescriptive easements in Australia and England.

• Jurisdiction: Australia
• Author: Burns, Fiona R.
• Date: 01 April 2007

[The law of prescription--prescriptive easements in particular--has played a vital role in English and Australian land law. Prescriptive easements were easily accommodated into a land law system based on possessory, relative and defeasible titles. However, the advent of title by registration in both countries has raised the issue of whether prescriptive easements have any future value or utility. This article examines and compares the present state of prescriptive easements in Australia and England. It then considers arguments for changes to the law of prescriptive easements, and suggests what action would need to be taken if they were abolished. This article contends that abolition would not be a simple process, as prescription has not only had a role to play in protecting retrospective interests, but also in mediating claims for access and use between landowners.]

I Introduction II The Law of Prescription Operating Independently of Land Title Registration Systems A The Common Law and Prescription B England 1 General Principles 2 Grounds for Acquiring an Easement by Prescription 3 Kinds of Prescriptive Easement C Australia 1 General Principles 2 Grounds for Acquiring an Easement by Prescription 3 Kinds of Prescriptive Easement D Comment III Impact of Land Title Registration Systems on Prescriptive Easements A The Introduction of Land Title Registration B Prescriptive Easements and the Torrens System in Australia 1 Prescription as an Exception to the Principle of Indefeasibility and the Completeness of the Register 2 An In Personam Obligation Binding the Person Who Was the Registered Proprietor at the Time the Easement Was Acquired 3 Transitional Provisions and Effective Abolition of Prescriptive Easements under the Torrens System 4 Abolition of the Doctrine of Lost Modern Grant and the Implementation of a Statutory System 5 Silence C England D Comment IV Proposals for Reform of the Law of Prescription A Retain Prescriptive Easements in Accordance with the Current Grounds of Acquisition B Retain the Law of Prescription Subject to Legislative Amendment C Abolish the Law of Prescription 1 Arguments for Abolishing the Law of Prescription 2 The Process of Abolition 3 A Preferred Model of Abolition D Comment V Conclusion I INTRODUCTION

In R v Oxfordshire County Council; Ex parte Sunningwell Parish Council ('Oxfordshire County Council') Lord Hoffmann stated on behalf of the House of Lords that: 'Any legal system must have rules of prescription which prevent disturbance of long-established de facto enjoyment.' (1) Unfortunately, Lord Hoffmann did not elucidate why the House of Lords considered that any legal system requires prescription. It was readily assumed to be the case. His Lordship's statement was made by the highest court of a country which has had 'a strong policy bias in favour of the legitimacy of a user which has been exercised de facto over extended periods of time.' (2) For centuries, (3) prescription has been an important basis for claiming easements and profits a prendre (4) in England. (5) Prescription is based on the rationale that over time a person may acquire an interest in land on the basis of de facto long continuous user. Lord Hoffmann's statement signalled that the House of Lords favoured the survival of prescription and, in particular, prescriptive easements in the ongoing reform of the land registration system. Broadly speaking, under the new Land Registration Act 2002 (UK) c 9 prescriptive easements continue to constitute 'overriding interests'--namely, interests that will be enforceable against a proprietor of land although they do not appear on the land register. (6) Nevertheless, their status has been significantly modified.

There have been concerns that the law of prescription is in an unsatisfactory state, (7) and even recommendations for the abolition of prescription altogether. (8) Therefore, English law is at an important crossroad. The issue is whether to retain, modify or even abolish prescription generally, and prescriptive easements in particular.

In the 19th century, the Australian law of prescription was modelled on English common law. However, there were a number of factors which led to significant differences between the two countries. These included English legislation, (9) which was not uniformly applied in the Australian colonies, the adoption of the Torrens system in Australia, and incremental changes to the law governing prescriptive easements in the states following Federation. However, a catalogue of differences between Australian and English law does not fully describe Australian developments in this area. There have been two important, overarching trends. First, the Australian states have failed to adopt a uniform approach to prescription and prescriptive easements. This is not an unusual problem with respect to Australian land law. (10) Secondly, Australian legislatures and courts have not readily assumed that prescription is an indispensable component of their land law. Recently, in Williams v State Transit Authority of New South Wales (' Williams') the Supreme Court of New South Wales held, with equanimity, that prescriptive easements have only a minimal role to play in the Torrens system in that state. (11

The purpose of this article is to review the law of prescription in England and Australia, to describe the impact of title-by-registration systems in both jurisdictions, and to evaluate alternative avenues of law reform. This article is divided into five parts. Part II outlines the traditional English law of prescription, which operates independently of title by registration. It also examines the law governing prescriptive easements in Australia with special emphasis on how the fundamental principles have been changed by legislation (other than the Torrens system). Part III considers the impact of the Torrens system in Australia and the new Land Registration Act 2002 (UK) c 9 in England on prescriptive easements. Part IV evaluates the arguments for retaining, modifying or abolishing prescriptive easements. In Part V some concluding remarks are made regarding important issues raised in the preceding Parts.

II THE LAW OF PRESCRIPTION OPERATING INDEPENDENTLY OF LAND TITLE REGISTRATION SYSTEMS

A The Common Law and Prescription

The doctrine of tenure--under which a person did not own the land, but held it as a tenant of the Crown or a feudal superior--has shaped English land law. Therefore, in a highly technical sense, English law never employed the concept of ownership to land. (12) Instead, for much of the history of English land law, possession and physical control of land dominated legal reasoning about title and rights to land. (13) All titles to land were based on possession or 'seisin'--so that a person seised prevailed against all others who could not show a better right to seisin. (14) Title was relative. In an action to recover land, it was not necessary for the demandant (or plaintiff) to prove absolute title. The issue was whether the demandant could establish an earlier and better seisin. (15) Title was also defeasible because even if seisin was wrongfully taken by a disseisor, they had good title against all except the disseisee and their successors in title. (16) Lord Hoffmann's statement in Oxfordshire County Council reflected this history. Similarly, several years earlier his Lordship had observed in another case that '[e]xclusive possession de jure or de facto, now or in the future, is the bedrock of English land law.' (17)

In contrast, Roman law operated very differently. (18) Under the Roman doctrine of dominium, the dominus was entitled to an absolute right in, and unlimited control over, land. However, in reality, 'complete' dominium did not exist. Rather, an investigation of Roman texts demonstrates that ownership was 'hedged about by restrictions which [took] into account the normal everyday requirements of community living.' (19) One necessary accommodation of community living was the law of prescription. Claimants contended that they acquired a prescriptive right based on taking an interest by use or 'usucapio'. (20)

English law adopted this principle of prescription and was influenced by the Roman law. (21) However, there was one major difference. At English common law, (22) a person did not simply acquire an interest in land because of their use of that land. Rather, after a lapse of time, the law either barred an owner from asserting an interest contrary to the claimant or it was presumed that the owner or their predecessor in title had granted the claimant a lawful title. (23) The former was the basis for the law of adverse possession, while the latter established the legal rationale for the law of prescription. (24)

Prescription was not founded on exclusive possession, but on de facto enjoyment which fell well short of complete control. Nevertheless, prescription was based on a physical nexus with the land for a significant period of time. Prescription has been defined as 'a title acquired by use or enjoyment had during the time and in the manner fixed by law.' (25) A party who successfully claimed an easement by prescription not only acquired an interest which was carved out of a larger estate, but also an incorporeal right or hereditament. (26) It was a legal proprietary interest in the servient land which would endure in favour of successive owners of the dominant land and would bind successors in title of the servient land. (27) It presented special problems because '[d]e facto use and possession of land implies (at least evidentially) a de jure ownership (and conversely de facto non-possession and non-use of the land implies de jure non-ownership).' (28) Nevertheless, the adoption of prescription indicated two concessions. One was the practical recognition that sometimes people need to use other people's land and that it will be necessary to set down rules determining how rights are legitimately acquired...