Uncovering the secrets of prescriptive service easements

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It has traditionally been difficult to establish rights for cables, pipes and wires based on long user. This is because one of the requirements which must be satisfied to prove a prescriptive easement is that the right must have been exercised for the requisite period “without force, secrecy or permission” and underground pipes, wires and cables are by their very nature hidden from view and not apparent on the surface. The recent case of Stanning v Baldwin [2019]EWHC 1350(Ch) is a useful one for both statutory undertakers and others seeking to establish rights based on long user.

In this case the claimant, Mrs Stanning, owned the Coach House, which bordered the north east corner of Gerrard’s Cross Common. The Coach House had been built in 1978 in the grounds of what had once been one house and it had been connected to drains laid under the Common in 1906 to serve the original house. In 2017 Mrs Stanning obtained planning permission to demolish the Coach House and build a terrace of four houses and the owner of the Common, Mr Baldwin, raised concerns. Negotiations followed but failed to reach agreement and Mrs Stanning applied for various declarations, including a declaration as to the existence and extent of an easement of drainage in favour of the Coach House to connect into the drain beneath the Common.

The Court determined that an easement would have arisen if drainage had been enjoyed “openly and without permission over an uninterrupted period of 20 years”. It found that the construction of the original property in 1906 must have involved excavation of the Common which would have been open and obvious and must have come to the attention of the owner of the Common. It was suggested that this original construction was with permission but on the evidence the Court found that the permission had expired by 1962 at the latest so the only question was whether the use had been “open”.

The Court acknowledged that in most cases, imperceptible use of underground drains is not sufficiently open to give rise to a prescriptive easement but cited the test in the leading text book on the subject, Gale on the Law of Easements. This states that the test is whether successive owners of the servient land either must have known or had a reasonable opportunity of becoming aware of the existence of the pipe or drain in question under their property.

In this case the Court concluded that the use of the drainage pipe in connection with the Coach House had been open since the house was built in 1978, even though there was no excavation of the Common at that time. The owner of the Common knew of the construction of the Coach House and, even though no works were needed to the Common itself, neighbours with an interest adverse to a new development are always likely to ask themselves questions such as where drains are to be routed. When Mr Baldwin saw the Coach House was being constructed he was put on enquiry as to how it was to be drained and could have asked. Mr Baldwin did not ask the question in circumstances where it was an obvious enquiry to make by a person in his position.

Based on this reasoning the Court found that the development of the Coach House and its connection to the drain under the Common was sufficiently open to found the acquisition of an easement of drainage for the Coach House and therefore an easement arose, at the latest, 20 years after its construction.

There are useful analogies here for statutory undertakers who find themselves without expressly documented rights for their pipes and cables. Where, for example, an electricity substation is constructed which is not immediately adjacent to a public highway, it is obvious that the substation needs cables to connect it to the surrounding network and the original laying of the cables will have been apparent to all around. It may therefore be argued that owners of the affected land either must have known or have had a reasonable opportunity of becoming aware of the existence of the cables through their property.

This is only a first instance decision so it should be treated with caution but nevertheless it contains some useful guidance as to how prescriptive claims for service easements may be established and, at the very least, it is useful ammunition when dealing with land owners objecting to prescriptive easement claims.

If you'd like further advice about this please don't hesitate to contact a member of our Property Team.

RELATED:   EXPERTISE - REAL ESTATE


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