Acquired rights of way and drainage – intensification or change of use?

Property developers may be interested in the recent case of Stanning v Baldwin and Barber, as it tackled three common issues which they may face during development. It was an exciting and rare opportunity for the High Court to discuss a right of way, drainage and a boundary dispute all at once, but even more encouraging is the fact they found in favour of the developer every time.

Background

The Claimant is the owner of a property called The Coach House; a property located on the border of Gerrards Cross Common (the Common). The Defendants, brother and sister, are the lords of the Manor of Chalfont St Peter (a title bought by their father in 1962) and owners of the Common. The title to the Common includes the only means of access to the Coach House and other properties (the Track) – including Harewood Lodge, which the Claimant’s father (a property developer) owned until 1969. He built the Coach House in 1978 and the Claimant inherited the property upon his death in 2008.

When the Claimant applied for planning permission to change the Coach House into four properties and develop an underground residential car park, disputes arose regarding:
1. The right of way of way to the properties to be developed;
2. Drainage from the Coach House and the properties to be developed; and
3. The boundary between the Common and the Coach House.

Right of way

Due to the length of time the Coach House had been owned by the Claimant’s family, it was agreed that they had acquired a right of way over the Track by way of prescription. The Claimant sought a declaration that their acquired right of way was sufficient to accommodate the use of the Track for their intended development plans.

The Defendants argued that the Claimant’s development plans would lead to excessive use of the Track through more vehicles, including construction vehicles which would surely damage the Track. Additionally, the Defendant argued that they would suffer a nuisance in having to resurface the damaged Track as the Claimant had no right to resurface it. Thus the Defendant sought to prevent the use of the track for the development.

The main questions to be considered by the Court were:
• Does the change in use place more burden on the Track?
• Is the development a radical change in the character/change in identity of the site, or a mere change or intensification of the use?

In Williams v James (1866-67), a prescriptive right of way was held to be ‘a right of way for all purposes according to the ordinary and reasonable use to which the land might be applied at the time of the supposed grant’.

The judge found that the Defendants had never specified that the right of way did not extend to housebuilding, and actually allowed such use in 1978 and 2009 which included the presence of construction vehicles. The Defendants produced no expert or even lay evidence to show that use by construction vehicles had damaged, or would damage, the Track surface.

Finally, the changing of one building into four may seem like an excessive change in the amount of vehicles using the Track, but there were six vehicles already using the Track, which would increase to nine upon completion of the proposed development. This was held not to constitute excessive use or radical change, but merely an intensification of the use.

Therefore, the Court found the Claimant’s plans would not be exceeding the right of way she already had.

Drainage

Different drains surrounded the Coach House, connecting to a public pipe with a manhole located along the Track. The Defendants rejected the Claimant’s assertions that the Coach House had drainage rights, and argued that the Claimant should not be allowed to connect the drains of the new houses into the public drain.

The judge had to consider whether the drains had been used “as of right” by the Claimant, i.e. without secrecy, force or permission and thus give rise to a prescriptive drainage easement.

It was found that although the owner of the Common in 1906 knew about the excavations which attached the pipes around the Coach House to the public drains, any drainage licence he impliedly then provided ended with a change of ownership in 1940 or 1962. Therefore there was still a question of “open” use of the drains by the Claimant if the Defendant was not presumed to know of such use.

The judge did, however, find that there had been open use of the pipes since 1978 due to the actual construction of the Coach House. The public sewer running through the Common and Track is shown on modern public records which would have been available in 1978. Therefore, according to a principle from Dalton v Angus [1881], the Track owner was put on inquiry – when he saw the Coach House being constructed – as to how it would be drained. As there were no questions or disputes raised, the use of the drains can be considered as sufficiently “open” (despite the actual drainage being hidden underground) to acquire an easement of drainage. And because the drains have sufficient capacity to serve the proposed new houses, the prescriptive easement can be used for their benefit too.

Boundary dispute

The parties disputed the location of the boundary by a distance of around 2 metres. The Defendants argued it was at the top of a man-made slope (the Bund) and the Claimant argued it was at the Bund’s front edge. The Claimant tried to argue that an ordinance survey (OS) map from 1938 should be the judge’s main consideration as it was the basis for the registration of the land. However, this was seen as too specific as the boundary had not been legally determined under s60 of the Land Registration Act 2002, which states:
• The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.
• A general boundary does not determine the exact line of the boundary.

Overall, as the evidence submitted was mostly either of bad quality or based on crude methods of determining boundaries, the judge focused on the physical features of the land to determine the boundary. He found that, on the balance of probabilities, the Bund was most likely to have been made in or around 1906 when Harewood Lodge was built. It was likely the owners of the land at the time had more information on the boundary than today and so would have more stringently determined the allowed location of the Bund. It was therefore found that the Bund’s front edge was the legal boundary of the Claimant’s land because it is well settled that when someone is building a ditch on their land they dig from the boundary placing the soil onto their own land.

Commentary

This case brings to the forefront the words of the Judge from the Williams v James case which explained the fullness of a right acquired under prescription. It is important for landowners and developers to know the extent of their right, but also that housebuilding and the access of construction vehicles would be included in that right unless the amended use of the right would result in excessive use.

Remarks in the case of McAdams Homes Ltd v Robinson in 2005 are helpful in differentiating between excessive use and a mere intensification of the use of land and were applied in this case. Although it was stressed that each case turns on its own facts and involves a question of degree, the McAdams test nevertheless represents the starting point in considering these issues. In order for a right of way to be suspended or lost by reason of increased use it must be proven both that
• the development of the land constitutes a radical change in the character/identity of the site and
• the use of the redeveloped site would result in a substantial increase or alteration in the burden on the servient land
In terms of assessing an increase for stage two of the test it was suggested that an increase from one car to four could be excessive, but six cars to nine would not be.

Landowners need also be aware of any drains that run underneath their land which may be in use by others. The drainage of a new property should be questioned at the earliest possible stage of development – especially if permission is not intended to be granted.

The importance given to a man-made slope over OS surveys is also an important factor to consider as this provides insight into how the physical nature of the land can be useful in determining boundaries. This case suggests that in the absence of any compelling evidence to the contrary the Court may infer that any man-made bunds will have been placed within the boundary of the excavating owner, and as such represent the boundary.