Can a right to emit sound waves across another person’s land constitute an easement and can it be acquired by prescription?
By Cassandra Cartwright
Strange as it may seem, the emission of noise — even intermittently and at differing volumes — can be acquired as a property right. If those emissions constitute a nuisance, but the noise continues unchallenged for 20 years or more, an easement to make that noise will be acquired by prescription. This means it will no longer be open to challenge, at least not as a matter of private land law between landowners. The existence of planning permission in relation to the activity that causes the nuisance can be taken into account by the court when considering the character of the locality in which the aggrieved owner and defendant have their properties.
A brief outline of how an easement can be acquired by prescription (long use) was included in an article in our July/August 2013 alert, albeit in the context of a right to park. A prescriptive easement can arise in three ways: under the Prescription Act 1832, the doctrine of lost modern grant or the archaic and little-used common law rule of prescription that deems there to have been continuous use since 1189. The case of Coventry and others v Lawrence and another involved a claim under the Prescription Act 1832…
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