McADAMS HOMES Ltd and ROBINSON and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Sir Martin Nourse |
| Judgment Date | 27 February 2004 |
| Neutral Citation | [2004] EWCA Civ 214 |
| Date | 27 February 2004 |
| Docket Number | Case No: B2/2003/1130 |
| Court | Court of Appeal (Civil Division) |
[2004] EWCA Civ 214
Lord Justice Peter Gibson
Lord Justice Neuberger and
Sir Martin Nourse
Case No: B2/2003/1130
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHICHESTER COUNTY COURT
HHJ ROBIN BARRATT QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ms Kate Selway (instructed by Hart Reade of Eastbourne) for the Appellant
Mr Stanley Widdup (instructed by Owen-Kenny Partnership of Chichester) for the Respondent
This is an appeal brought by McAdams Homes Ltd ("McAdams"), pursuant to permission granted by Lord Justice Jonathan Parker, against a decision of His Honour Judge Robin Barratt QC, in the Chichester County Court on 15 April 2003. The facts of the case are straightforward, and, while they give rise to an issue which is simple to explain, it is one which is rather more difficult to resolve. As is often the case with issues involving easements, the difficulty arises, at least to a significant extent, because of the somewhat confused state of the authorities.
The facts
In 1949, Stanley Holt was the freehold owner of a cottage and garden called Whyte Cottage, Lake Lane, Barnham, Bognor Regis, West Sussex ("the cottage"), together with adjoining land also fronting Lake Lane. In that year, he obtained planning permission to construct a bakery on the adjoining land ("the site"). When implementing that planning permission, the foul and surface drainage systems serving the bakery were constructed so as to connect to the public sewer, which ran to the rear of the properties fronting Lake Lane, through the drainage system serving the cottage. In other words, the foul and surface drainage left the site through a drain ("the drain") which was connected into the pipe serving the cottage ("the Pipe") which ran from under the cottage into the public sewer.
Stanley Holt died in 1972, and the freehold of the cottage and the site passed to Roy Holt. On 8 th April 1982, Roy Holt sold the freehold of the site to a Mr Richards, who operated the bakery until about 1986. Thereafter, the bakery remained unoccupied, and appears to have become derelict. The freehold of the site was vested in a Mr Langridge in or about 2000.
Roy Holt sold the cottage to a Mr & Mrs Sutton on 30 th April 1984. On 27 th August 1997, Mr & Mrs Sutton sold the cottage to the defendants, Colin and Ashley Robinson ("the Robinsons").
On 1 st September 2000, the local planning authority, Arun District Council ("the Council"), granted Mr Langridge outline planning permission for the erection of two detached four-bedroomed houses on the site of the bakery. Mr Langridge then sold the site to McAdams, a residential property development company, on 14 th December 2000. During 2001, McAdams demolished the bakery and erected in its place two houses ("the houses"), each of which was subsequently sold for just over £230,000.
McAdams intended the two houses to enjoy substantially the same system as had been used by the bakery for discharging foul and surface water, namely through the drain on the bakery site, through the Pipe under the garden of the cottage, and thence into the public sewer. However, in or about August 2001, while McAdams were constructing the two houses, the Robinsons blocked the Pipe. After some argument, McAdams arranged for the construction of a new means of drainage from the two houses into the sewer, at a cost, as found by the judge, of £6,633.26.
In February 2002, McAdams issued proceedings for recovery of this money, together with interest (and certain other sums which were not ultimately pursued). The claim was based on the contention that, by blocking the Pipe, the Robinsons had unlawfully interfered with the easement of drainage enjoyed by McAdams, as the owner of the site. Judge Barratt dismissed the claim and McAdams now appeal that decision.
Preliminary
It is common ground between the parties that the conveyance of the site in April 1982 ("the 1982 conveyance") included, by implication, a right in favour of the purchaser to discharge foul and surface water from the bakery, through the drain under the site and under the cottage garden, into the Pipe under the cottage garden, and then through the Pipe into the public sewer. This appears to me to be correct in light of the principle established in Wheeldon Burrows (1879) 12 Ch D 31 at 49, where Thesiger LJ said in a famous passage:
"[O]n the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted."
Drainage is within the category of "continuous and apparent easements": see Pyer Carter (1857) 1 H&N 916 and Watts Kelson (1870) 6 Ch App 166.
Before turning to the central issue in this case, it is right to get two points out of the way. First, owing in part to the high water table in the area, and in part to the hydraulic pressure in the public sewer, backflow of sewage sometimes occurred in the public sewer during times of high rainfall. This has caused sewage to be discharged back up the Pipe into the garden of the cottage. It appears pretty clear from the evidence that it was the Robinsons' concern about this problem which was at least a major reason for their decision to block the Pipe. This problem has now largely been dealt with by the Council, albeit that the judge stated that it "may not have been fully alleviated".
One can easily understand the Robinsons' distress at sewage backing up through the Pipe into their garden, and one can fully sympathise with their resulting wish to minimise the amount of effluent, and in particular foul drainage, passing through the Pipe. However, it does not seem to me that this problem can, as a matter of law, serve to justify the Robinsons' blocking the Pipe. Indeed, I did not understand Mr Widdup, who appeared for the Robinsons, to argue otherwise.
If a public sewerage system, into which effluent from a private drain discharges, is in a defective condition such that, on occasion, it backs up, that cannot of itself render unlawful an otherwise lawful use of the drain by a third party (unless, of course, the terms upon which the third party is permitted to use the drain happened so to provide). If the owner of a drain expressly or impliedly grants an easement to another party to use the drain for certain purposes, the easement cannot be determined, nor the purposes cut down or modified, merely because of some subsequent defect in the public sewerage system into which the drain discharges. The position, would, of course, be very different if, in a case where the issue was whether the other party was making excessive use of the easement, it was established that his alleged excessive use of the drain was causing, or even substantially contributing to, the backing up. However, no such suggestion has been raised by the Robinsons so far as the proposed use of the Pipe in connection with the use of the two houses.
The second point it is right to mention arises from Ms Selway's contention on behalf of McAdams, that the blocking of the drain was, on any view, wrong, because it occurred before either of the two houses was occupied, and, indeed, before either of the two houses was built. In the first place, it may well be that, if the use of the Pipe for discharging water from the two houses was not a permissible use, then the easement was lost when the bakery was demolished. After all, it is clear that there was no intention to rebuild the bakery; it might well have been different had the bakery been demolished with a view to a new bakery being erected. In this connection see the discussion in paragraph 18–187 of Megarry & Wade, The Law of Real Property, 6 th Edition.
Quite apart from this, it appears to me that, if the enjoyment of the Pipe for the benefit of the two houses would have been impermissible, it cannot be said that the cost of constructing the new drain was in any way attributable to the blocking of the Pipe by the Robinsons. If the use of the Pipe by the two houses would not have been permissible, then it would have been necessary for McAdams to have constructed the new drain whether or not the Pipe had been blocked off. In those circumstances, even if the Robinsons had not blocked the Pipe, McAdams would still have had to incur the expense of constructing the new drain.
The judgment below
That, then, brings me to the issue which the judge below had to resolve in order to determine this appeal. That issue was as follows. Was the easement of drainage, granted by implication by the 1982 conveyance, such that it could be used for the benefit of the two detached four-bedroomed houses erected in place of the bakery in 2001?
The judge gave a negative answer to this question. As I read his judgment, there were two reasons for this conclusion. His first reason was expressed in these terms:
"It was not in the contemplation of the parties [to the 1982 conveyance] that the bakery would cease to be used as a manufactory. Nor either would it have been in the reasonable contemplation of the parties at that time that it would have been reasonable to discharge raw sewage onto Whyte Cottage."
Secondly, he said that:
"The redevelopment of the bakery and its subsequent use for residential use is a completely...
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