Fitzpatrick & Ors v Spencer

For a prescriptive drainage easement, the extent of the right is measured by the extent of the historic user. The court must assess the actual use acquiesced in by the servient owner and decide whether later use is a different use or merely a variation of the same use. The issue is fact-sensitive and should ordinarily be determined after evidence of historic use has been heard.

Redevelopment of the dominant land does not automatically extinguish or suspend the easement. The relevant questions are whether the redevelopment causes a radical change in the character or identity of the site and whether the redeveloped use substantially increases or alters the burden on the servient land.

The claimants appealed against summary judgment granted by the Central London County Court, which restricted their pleaded prescriptive drainage easement and struck out their claim for damages. The dispute concerned drainage beneath the defendants’ land and historic use of the claimants’ land, including its possible former use as stables and its later use as garages and a yard.

The county court had also concluded that redevelopment of the dominant land into two houses would substantially increase or alter the burden on the servient land. A second appeal concerned an order which had subsequently been overtaken by events.

1. First appeal allowed. The evidence gave the claimants a real prospect of proving historic use of the drain for different kinds of effluent, potentially including faecal matter. The evidence concerning use of the land as stables was limited, but it could support an inference that polluted water containing manure and urine had entered the drains. It was inappropriate to determine the issue summarily before further evidence and findings of fact.
2. The extent of a prescriptive easement is measured by the extent of the user. The court must identify the extent of the use in which the servient owner has acquiesced and determine whether the proposed use is different or merely a variation of the same use. The distinction between different kinds of effluent could not properly be resolved without evidence.
3. The redevelopment issue was governed by the two questions stated in McAdams Homes Ltd v Robinson: whether the redevelopment represented a radical change in the character or identity of the site, and whether the redeveloped use would substantially increase or alter the burden on the servient land. Although the first question was satisfied, the second was a question of fact and degree. It was not self-evident and could not be decided summarily without evidence.
4. The possible inclusion of land outside the original dominant tenement was a separate issue. Land not forming part of that tenement would not benefit from the prescriptive drainage right.
5. The second appeal had become otiose following a later county court order. No order was made on that appeal, save that the claimants were ordered to pay the defendants’ costs from 24 February 2017.

1. Central London County Court: Judge Gerald granted summary judgment on 11 November 2016, restricted the pleaded drainage easement and struck out the damages claim. A further order made on 10 February 2017 overtook the subject matter of the second appeal.
2. High Court (Chancery Division): the first appeal was allowed. The second appeal was treated as otiose, subject to the specified costs order.