Mills & Ors v M I Developments (UK) Ltd & Anor

A prescriptive easement does not, merely because it is recognised by the domestic law of prescription, infringe Article 1 of the First Protocol to the Convention. The domestic legal system may determine how prescription operates, provided any deprivation of property is in accordance with law. The Prescription Act 1832 did not replace or abolish the common-law doctrine of lost modern grant. The existence of two possible methods of acquiring an easement may be inconvenient, but that does not establish that the Act was intended to be a complete code.

The applicants sought permission to appeal from a judgment of His Honour Judge Rutherford in the Bristol County Court dated 13 August 2002. The county court found that an easement or right of way had been acquired over the respondents’ property by lost modern grant, but rejected a claim under the Prescription Act 1832 because the right had been interrupted for a year before proceedings were brought.

The applicants argued that recognising the easement infringed Article 1 of the First Protocol and Article 6 of the Convention. They also argued that sections 2 and 4 of the Prescription Act 1832 constituted a complete statutory code which had displaced lost modern grant.

1. Application refused. The court refused permission to appeal and ordered the applicants to pay the costs.
2. The applicants accepted that prescription as a legal method of acquiring or recognising rights was not itself objectionable under the Convention. That concession was consistent with the approach in Pye v Graham [2001] Ch 804, paras 45 onwards, and with the Strasbourg decision in Oneryildiz v Turkey.
3. The recognition of a prescriptive right did not necessarily deprive the registered owner of property. It could instead declare the limits of the owner’s existing property rights. In any event, regulating the respective rights of neighbouring landowners was capable of being in the public interest, and the decision was made under the conditions provided by domestic law.
4. The argument that lost modern grant was irrational, or incompatible with the registered title system, disclosed no arguable Convention violation. Once prescription was accepted as Convention-compatible, the manner in which domestic law operated the doctrine was principally a matter for the domestic legal system. The applicants identified no basis for concluding that any deprivation was not in accordance with law.
5. Sections 2 and 4 of the Prescription Act 1832 did not establish that Parliament intended the Act to replace or reduce the doctrine of lost modern grant. The fact that two methods of acquiring an easement might be inconvenient or unsatisfactory did not make the statutory scheme exclusive. The long history of decisions applying lost modern grant also made the proposed interpretation insufficiently clear to justify permission to appeal.

• Court of Appeal (Civil Division): Permission to appeal from the Bristol County Court was refused, with costs.
• Bristol County Court: His Honour Judge Rutherford, on 13 August 2002, found an easement acquired by lost modern grant but rejected the Prescription Act claim because of interruption for a year before proceedings.