The High Court decision in Stanning v Baldwin [2019] EWHC 1350 (Ch) concerned the proposed redevelopment of a dwelling in Gerrards Cross, which was constructed in 1978 on land adjoining a common. The landowner had obtained planning permission to demolish the dwelling and replace it with four terraced houses and, as a result, found herself embroiled in a legal battle with the lords of the Manor of Chalfont St Peter.
They were the freehold owners of the common and they objected to the development on the ground that it would place an intolerable burden on a prescriptive right of way over a track that crossed the common: PP 2019/94. The judge disagreed, but that was not the end of the argument about the rights that the property enjoyed.
The owner of the house planned to connect the new dwellings to an existing drain beneath her property, which connected to a public sewer that crossed the common, and claimed to have acquired prescriptive rights of drainage over the connection. But easements by prescription arise only when use has not been forced on, hidden from, or licensed by the owner of the servient land.
So how does one acquire prescriptive rights over land belonging to a third party when drainage pipes are situated underground? The judge cited a passage in Gale on Easements suggesting that the court should ask whether successive owners of the servient land (assuming them to have been reasonable persons, diligent in the protection of their interests) must have known about, or must be taken to have had a reasonable opportunity of becoming aware of, the existence of pipes or drains crossing their property. If so, could they reasonably have been expected to resist the use being made of them?
There was evidence to suggest that the pipe connecting with the public sewer below the common was laid in 1906. This would have involved an excavation of part of the common, which would not have escaped the attention of the lord of the manor at the time, who was particularly vigilant about encroachments. The titles to the dominant and servient properties had then changed hands in 1940 and 1962 respectively, which would have terminated any permissive use of the pipe: London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356. But how would the subsequent trespassory use have been brought home to the owner of the common?
The drain that served the house was connected to the system when the house was built in 1978. The builder had not had to carry out any work on the common in order to make the connection, but the judge considered that the lord of the manor had had enough information to put him on enquiry about the means of drainage from the house. If he had asked, and information had been withheld, the subsequent use of the pipe would not have been open. But he did not ask and the house had acquired prescriptive rights of drainage 20 years later.
The judge had already decided that the proposed redevelopment would not radically change the character of the dominant land and the owners of the common accepted that the pipe was capacious enough to cope with the additional use. So the prescriptive right of drainage that had arisen would accommodate the new houses as well.
Allyson Colby is a property law consultant
