PRESCRIPTIVE ACQUISITION OF RIGHTS OVER PUBLIC AUTHORITY LAND

Extract

THE “tripartite” test for the prescriptive acquisition of rights over land, derived from the Roman law of servitudes, has long been a source of confusion. The crucial distinction that underlies it is between use of land that is “as [if] of right” – nec vi, nec clam, nec precario (without force, stealth, or licence) – and use that is “by right” – that is, with a licence. This distinction has been affirmed by the Supreme Court in R. (Barkas) v North Yorkshire County Council & Another [2014] UKSC 31. The court held that use of land pursuant to a statutory entitlement is necessarily use “by right”, and so was not “as of right”.