Gardner & Anor v Davis & Ors

An easement of drainage may defend a nuisance claim, but its effect depends on the facts and the scope of the grant. An express easement must be construed by its language together with the circumstances and purpose of its creation. A right to discharge sewage through a shared system does not authorise use which regularly causes raw sewage to escape onto the servient land and constitute a nuisance. The easement is then no defence to the nuisance. An injunction may restrain the continuing nuisance, but it protects legal rights only; the court cannot impose a separate practical solution which the parties’ rights do not support.

Owners of three adjoining rural properties shared drainage, a septic tank and a soakaway under express drainage easements. The owners of no. 3 alleged that the owners of nos. 1 and 2 caused a nuisance by continuing to discharge sewage after the system could no longer cope, resulting in repeated overflow.

The Weymouth County Court found a nuisance, awarded £1,000 damages and granted a suspended injunction restraining overflow or spillage, subject to the plaintiffs disconnecting part of the system. The defendants appealed, arguing that the easement authorised their use regardless of capacity, that excessive use had not been properly pleaded or proved, and that the injunction and costs orders were improper. The central issues concerned construction of the easement, nuisance relief and appellate review of discretionary costs.

Appeal dismissed. Mummery LJ held that the Recorder was entitled to find that the shared drainage system could not accommodate current usage, that regular escape of raw sewage constituted a nuisance, and that the defendants’ use partly caused it.

1. An easement may provide a defence to nuisance, but only according to the facts giving rise to the alleged wrong and the nature and extent of the easement.
2. An express grant or reservation must be construed from its language together with the surrounding circumstances and purpose of its creation. There is no inflexible rule limiting use or quantum to that existing when the easement was created. The relevant factual matrix included the three properties, the shared system, the septic tank and soakaway, and the nature of the drainage right. The approach in Jones v Pritchard [1908] 1 Ch 630 assisted that construction.
3. It could not reasonably have been contemplated that the easement authorised regular escape of raw sewage onto the servient land. The easement was therefore no defence to the nuisance. The defendants’ continuing use justified an injunction.
4. The injunction protected the plaintiffs’ legal right not to suffer nuisance. It did not give the court a general power to impose a practical sewage-disposal solution outside the parties’ rights.
5. The discretionary costs orders would not be disturbed where no irrelevant consideration, material omission, or plainly wrong or aberrant exercise of principle had been shown.

May LJ agreed with Mummery LJ’s substantive reasoning and conclusion. His additional observations encouraged lawyers to conduct litigation cooperatively, economically and with a view to sensible compromise; Mummery LJ agreed with those comments. The appeal was dismissed with costs, with legal aid taxation of the First Defendant’s costs.

• Court of Appeal (Civil Division): In [1998] EWCA Civ 1213, the defendants’ appeal was dismissed on construction of the easement, relief and costs. Legal aid taxation of the First Defendant’s costs was ordered.
• Weymouth County Court: Recorder Boyle found a nuisance, awarded £1,000 damages and granted a suspended injunction restraining sewage overflow or spillage, subject to the plaintiffs’ disconnection from part of the shared system.