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Atlas Chemicals operates a factory that works 24 hours a day. For many years, Atlas has been discharging poisonous chemicals into sewers owned by Rivertown City Council. This discharge always happens in the early hours of the morning, not as a deliberate attempt to conceal but because it suits Atlas's production cycle. The Council brings an action against Atlas to prevent the discharge of chemicals into its sewers, and Atlas claims an easement by prescription. Which of the following statements best describes the legal position?
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Atlas's use of the sewers is legally secret and is not capable of taking place as of right. For an easement by prescription to be established, the use must be "as of right," which means it must be open, continuous, and without permission. In this case, the discharge occurs in the early hours when it is unlikely to be noticed, rendering it legally secret. Consequently, the Council could not reasonably be expected to discover the use, and an easement by prescription cannot arise as the user would not be considered to be as of right.
Key Point: Establishing an easement by prescription requires the use to be open, continuous, and without permission. Secret or concealed use does not satisfy the criteria for being "as of right," preventing the establishment of a prescriptive easement.
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