An easement for recreation arising by prescription is not valid where it confers a unilateral right over private land lacking communal character, as distinct from easements over communal recreational spaces. The presumption that open user implies the servient owner's knowledge (Pugh v Savage) does not extend to presume that an agent of the owner had knowledge merely by reason of the agency relationship; something more in the nature of the relationship is required. Observable features of land that are rationally explicable by purposes other than the asserted user (such as fire mitigation) are insufficient to establish constructive knowledge. The question whether s 42(2)(d) of the Transfer of Land Act 1958 (Vic) preserves an easement by prescription where the 20-year period was incomplete at the time of a change of registered proprietor remains open.
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