Housebuilder Top Tip: The Danger Of Relying On Prescriptive Rights

One of the first issues that is considered in any development proposal is the adequacy of existing easements for the provision of an appropriate access into the site and for servicing the site.

It is often the case that the development does not benefit from the necessary express legal rights, but there may be potential to establish a successful claim for prescriptive rights by demonstrating that the rights have been used:

• continuously;
• for at least 20 years; and
• without permission.

However, in order to rely on prescriptive rights for the intended development, the following would need to be carefully considered:

(1) Does the development represent a change of identity or radical change in character?