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Redevelopment: three development disputes decided on

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The recent case of Stanning vs Baldwin [2019] EWHC 1350 raised a number of interesting legal questions, but - and perhaps more interestingly – it also gave the High Court the opportunity to tackle three of the classic issues that most developers face at some point: rights of way, drainage and boundary disputes.

The case

Glynnis Stanning, the Claimant, is the owner of a former coach house near the border of Gerrards Cross Common (the Common) which she wanted to demolish and redevelop into four terraced houses with underground parking. The only access to the coach house was via an unadopted track over the Common, which was included in the title to the house.

The Defendants were owners of the Common. They opposed the redevelopment for a number of reasons, including:

Right of way

Given the length of time the Claimant’s family had owned the coach house, it was agreed that she had acquired a right of way over the track, by way of prescription (which requires at least 20 years uninterrupted use). The Claimant therefore argued that this was sufficient to accommodate the use of the track for their intended development plans, and not just the current use, which was to gain access to the old coach house since Harewood Lodge and the old coach house were built.

The Defendants argued that the development would lead to an unacceptable intensification of the use of the track by more vehicles, including construction vehicles, which could lead to the track becoming damaged.

The Court focused on two main questions:

The Court found that the Defendants had never specified that the right of way didn’t extend to house-building, and had used the track for that purpose in 1978 and 2009. They also produced no evidence or expertise that showed that use of the track by construction vehicles would damage the track.

The Court also held that there would be no radical change in use, but merely an intensification, as there would only be an extra three cars - nine, rather than six - now using the track.

This case shows that, where there is no change in the use of the land, the land-owners themselves, with the burden of a right of way, do face an uphill battle to convince a Court that the intensification of use is manifestly excessive.

Drainage

A number of different drains surrounding the coach house all connected to a public sewage pipe. The Claimant wanted to be allowed to also connect the drains of the four new houses to this public drain. However, the Defendants rejected the Claimant’s belief that the coach house had drainage rights and disputed her right to be allowed to connect the new houses to the public drain.

The Court considered whether the drains had been used “as of right” by the Claimant. For this to happen, she had to be able to show she had a prescriptive drainage easement that was adequate enough to serve her proposed development. The three essential characteristics to establish a prescriptive drainage easement is that use must be without:

While there was no question in this case that the use of the drain had been without force, the Court then had to consider whether the right of drainage had been enjoyed openly and without permission, for a period of 20 years.

The Court accepted evidence that the drains had likely been in position since at least 1963, and probably since 1906, when a previous house  was constructed on the coach house’s current site. It was found that, while it was likely the owner of the site in 1906 knew about the excavations attaching the pipes around the house to the public drains, any drainage licence they might have had then would’ve ended with a change of ownership in 1940, or 1962. It was therefore found that use was not based on permission from the owner.

The Court took the view that the Defendants had effectively been put on notice about the drainage in 1978, at the latest, when their father built the house. They therefore ruled that the house’s connection to the drain under the common must have been obvious. As no questions or disputes were raised prior to this case in 2019, the use of the drains can be considered as sufficiently "open" (despite the actual drainage being hidden underground) to acquire a prescriptive drainage easement. As the drains have sufficient capacity to serve the proposed new houses, the prescriptive easement can be used for their benefit too.

This demonstrates how important it is for property owners to make proper enquires when neighbouring properties are undergoing development, otherwise a neighbour may acquire rights through long use, which the property owner is oblivious to at the time.

Boundary dispute

The parties disputed the location of the boundaries between their properties, by about a distance of around two metres. Unfortunately, as the title deeds had been lost, no-one knew when the ownership of the House and Common had been separated and the boundary drawn.

To establish the boundary’s location, the Court had to focus on the physical features of the land. It was found that, on the balance of probabilities, a bund on the land (a man-made earthen embranchment) was most likely to have been formed in or around 1906, when Harewood Lodge was built. It was likely the owners of the land at that time had more information about the boundary’s location than today, and therefore would have more thoroughly ascertained where the bund could be situated. The Court therefore found that the bund's front edge was the legal boundary of the Claimant's land, as it is settled law that, when someone is digging a ditch on their land, they dig from the boundary, placing the soil onto their own land.

Conclusion

This decision serves as a timely reminder of the often neglected importance of historical records and physical features in disputes like this.

In a case with plenty of interesting features, perhaps the most interesting of all was the fact that, in deciding on three of the most common issues facing developers – all in one case - the Court found in favour of the developer every time. A situation that will no doubt prove encouraging to developers everywhere.

If you have any questions about any of the issues raised in this blog, please contact Kate Raychinova or Sophie Morley from our Real Estate Team for more information.

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