Boundaries – Rights of way – Drainage rights – Claimant obtaining planning permission to demolish house and erect four terraced houses – Claimant seeking declarations as to rights over common owned by defendants – Whether claimant correctly identifying legal boundary between the house and common – Whether right of way over track sufficient to accommodate proposed development – Whether right of drainage existing to connect into drain beneath common – Claims allowed
The claimant owned The Coach House, which bordered the north-east corner of Gerrards Cross Common. Access to the house was by an unsurfaced and unadopted track over the common. The defendants were the freehold owners of the common. In July 2017 the claimant obtained planning permission to demolish the house and to erect four terraced houses, with underground parking for nine cars. Access would continue via the track. The defendants raised concerns about the proposed development in 2017, after planning permission had been granted.
A dispute arose concerning: (i) the position of the legal boundary between the house and the common, (ii) the right of way over the track, and (iii) the existence and extent of an easement of drainage in favour of the house to connect into a drain beneath the common.
The claimant sought a declaration that the right of way was sufficient to accommodate the construction and subsequent use of the intended development. The defendants argued that the right of way was limited to the use of a single dwelling and that the intended use of the right of way would materially increase the volume of traffic over what was an unmade track over the common, a local beauty spot registered as common land under the Commons Registration Act 1965 over which the public enjoyed recreational rights. The intended usage would effect a radical change in the character of the common and the track, and would impose a substantial increase in the burden on the common, materially interfering with the rights of the defendants and the public to enjoy the common land as a recreational space.
The claimant intended to connect the drains of the new houses to the existing drains underneath the house, which were already connected to drains underneath the common, through which she claimed a right of drainage. The defendants did not accept that the claimant had any drainage rights. They said that use of the drains under the common had not given rise to a prescriptive easement because it was either permissive or secret, or perhaps both at different times.
Held: The claims were allowed.
(1) The usual way to resolve a boundary dispute was to construe the disposition by which ownership of the properties was first separated. However, the title deeds had been lost and the only way of locating the boundary was to infer where it was originally set by reference to the evidence about the nature and location of boundary features over the years. By analogy, the claimant pointed to the “hedge and ditch presumption”, as approved by the House of Lords in Alan Wibberley Building Ltd v Insley [1999] 2 EGLR 89, that the person building a hedge and ditch would cut the ditch to the extremity of his own land. She also relied on a man-made earthen slope (bund) between the house and the common as the oldest surviving physical feature on the land. On the balance of probabilities, the bund was likely to have been formed at the time of construction works in 1906. The court was satisfied that the bund was within the claimant’s land and the boundary was in the location marked on the claimant’s title plan.
(2) If the proposed development self-evidently involved excessive user, the claimant’s right of way would not accommodate it. However, in the present case, the evidence did not justify the contention that the construction of the development would self-evidently involve a public nuisance or a breach of byelaws or any other laws in relation to the track. Nor was there satisfactory evidence that the use of the track for construction vehicles was bound to damage its surface. Six houses currently used the track for vehicular access. With the proposed development, that would increase to nine. But although the construction of four houses where one now existed would be likely to increase the use of the track, there was no basis for concluding that that would result in a public nuisance, or a breach of section 193(1) of the Law of Property Act 1925 or of any byelaws. Accordingly, the proposed use would not self-evidently be excessive and the claimant was entitled to the declaration sought.
(3) As regards the right of drainage, for an easement to arise by prescription the use had to be “peaceable, open and not based on any licence from the owner of the land”. There was no question of unpeaceableness in this case, so an easement would have arisen if drainage had been enjoyed openly and without permission over an uninterrupted period of 20 years. The legal burden lay upon the claimant to prove when permission ceased. That burden had been discharged by evidence that permission had expired in 1940 or 1962. The use of the drain ceased to be permissive on one or other of those dates. The wide test for openness was whether the servient owners had a reasonable opportunity of becoming aware of the existence of the pipe so that it would have been reasonable to expect them to resist the exercise of the right. It had not been proved that the use of the drain was trespassory until 1940. The question was whether use thereafter was sufficiently open for the purposes of acquisition of a prescriptive easement. The drain had been connected to the house when it was built in 1978. There was no excavation of the common at that time, but the defendants’ father knew of the construction. Neighbours with an interest adverse to a new development were always likely to be alive to the need for water pipes and drains, and to ask themselves where those were to be routed. There were other properties to the south of the house which had always needed drains, and the presence of a drain under the common was not difficult to infer. Those factors alone would not have led the defendant’s father to conclude that the house was to use a drain under the common. But they were enough to put him on inquiry and he had raised no objections. An easement of drainage arose in favour of the house, at the latest 20 years after its construction: R (on the application of Lewis) v Redcar and Cleveland Brough Council [2010] UKSC 11; [2010] 1 EGLR 153 considered. Dalton v Henry Angus & Co (1881) 6 App Cas 740 applied.
Philip Sissons (instructed by IBB Solicitors of Chesham) appeared for the claimant; Paul Wilmshurst (instructed by Allan Janes LLP of High Wycombe) appeared for the defendants.
Eileen O’Grady, barrister
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