This issue was considered by the Court in the recent decision of Stanning v. Baldwin  EWHC 1350. The Claimant, Glynis Stanning, obtained planning permission in 2017 to demolish a property known as the Coach House situated on Gerrards Cross Common ("the Common") and build four terraced houses. Access to the Coach House was via an unadopted track over the Common.
The Defendants, the owners of the Common, opposed the redevelopment and negotiations broke down between the parties. The Court was asked to consider a number of issues which had arisen between the parties.
(1) Right of Way
The Defendants sought to stop the redevelopment, by arguing it would lead to an unacceptable intensification of the right of way over the track. The Court held, following the decision in McAdams Homes Ltd v Robinson  EWCA Civ 214, that where there was no radical change in use but merely an intensification, the right of way would remain, save where the use was manifestly excessive.
The Court found that this high bar was not met in Stanning because there was no change of use and the new development would remain residential. Further, the use was not obviously going to cause a public nuisance, or breach the Common's bylaws or other statutory rights. The Court did not consider that the new use was "self-evidently excessive" on the evidence, despite possible damage to the surface of the track, an increase in cars accessing the new houses and an increase in vehicles during the construction phase. Consequently, the Court found that the continued use of the right of way would be permitted.
This case shows that where there is no change in the use of the land, owners of land with the burden of a right of way, face an uphill struggle in convincing the Court that the intensification of use of a right of way is manifestly excessive.
(2) Right of Drainage
For an easement to arise (such as the right of drainage) from long user (in excess of 20 years) the use must be "peaceable, open and not based on any licence from the owner of the land" R (Lewis) v Redcar and Cleveland Borough Council (No. 2)  2 AC 70. There was no question in this case that the use had been peaceable and so it was necessary for the Court to consider if the right of drainage had been enjoyed openly and without permission for a period of 20 years.
The evidence suggested that the drainage arrangements for the site had existed prior to 1968, and it was likely the connection with the main sewer was made in c.1906. It was considered likely by the Court that the Lord of Manor would have been aware of the excavation as he was active in enforcing his rights and it would have been readily apparent at the time. Originally, the use may have been permissive. The Court was persuaded, however, that any permission would have been a personal licence which would have ended on the first change of ownership of the Common or the site of the Coach House, as there was no evidence suggesting a formal right of drainage had ever been in place. The use was therefore held not to be permissive.
Turning next to whether the right of drainage had been used without secrecy, the Court noted that in most cases the imperceptible use of underground drains was not sufficiently open to give rise to an easement by prescription. The test was whether the owners of the land, with the burden of the right of drainage, had had a reasonable opportunity of becoming aware of the existence of a drainage pipe and whether it would have been reasonable for them to challenge the exercise of the right. The Court decided that when the current house on the site of the Coach House was built, in 1978, the owner of the Common at that time should have been put on enquiry. It would have been obvious that the property would need drains, and the presence of the drain under the Common was not difficult to infer. The owner of the Common at the time had objected to the building of a gate at the property and therefore was alive to the fact the construction work could have been detrimental to his interests. It would therefore have been reasonable to ask what the arrangements regarding drainage were. The Court found that the failure to do so by the then owner, meant that the use was sufficiently open for a right of drainage to be acquired which could be lawfully used by the redeveloped houses.
It is therefore important for property owners to make appropriate enquiries where development is being undertaken to neighbouring properties, otherwise rights may acquired by the neighbour by long use which the property owner is unaware of at the time.
(3) Boundary Issue
The Claimant and Defendants differed over where the boundaries between their properties lay. The Defendants claimed that the boundary lay where the registered title plan for the Common showed, but the Claimant argued it was approximately two metres to the west.
The title deeds had been lost, and no-one knew when the ownership of the Coach House and the Common had been separated. The Court therefore looked to the nature and location of the boundary features over the years.
The key feature considered was a bund, or earthen embankment, which it was likely (albeit not certain) had been formed in 1906 when a house had been built on the site of the Coach House. The Judge found that this was therefore probably the earliest physical feature and given that the then owner of the Common was diligent about protecting encroachments, was likely to have constructed on the land which became the Coach House. The boundary therefore lay on the far edge of the bund.
This decision serves as a reminder of the often overlooked importance of historical records and physical boundary features in disputes of this nature.
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