Scope of Easement on private right of way

smileyman
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Scope of Easement on private right of way

Post by smileyman » Sun Oct 01, 2017 2:53 pm

Hi Guys,
I am the servient owner, the dominant owner has the right to lay, relay and maintain services including pipes wires serwers subject to making good any damage.
Question does this include the right to discharge surface water into a soakaway which he would also have to make as there is no current facility?

mr sheen
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Re: Scope of Easement on private right of way

Post by mr sheen » Sun Oct 01, 2017 4:32 pm

'Ancillary rights' associated with major rights are assumed

ukmicky
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Re: Scope of Easement on private right of way

Post by ukmicky » Mon Oct 02, 2017 1:10 am

Would need to see full wording
Advice given is not legally qualified and you are advised to gain a professional opinion

smileyman
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Re: Scope of Easement on private right of way

Post by smileyman » Mon Oct 02, 2017 8:11 am

The full wording is as stated. I agree as always ancilary rights could be argued. If you grant a right of way you have as dominant owner no automatic right to a right to lay services which again could be argued ancilary. Laying services means to gently put down in normal usage not construct a soakaway?

ukmicky
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Re: Scope of Easement on private right of way

Post by ukmicky » Tue Oct 03, 2017 1:14 am

I would say a right to lay services would not allow someone to drain onto your land. Draining onto your land is an easement right itself that should be specifically granted in the wording

Note
An ancillary right is a right that in itself must be capable of existing as an easement itself ,however draining onto someone's land is normally a easement right itself that has ancillary rights attached to it. . Ancillery rights are rights that are required in order to allow the easement right to continue to exist such and inspection or repair.

Of course if they currently have a soak away under your land that would be different because they then may have gained a right to retain and therefore repair.


If they want to lay a totally new soak away and there wasn't one there before you should gain proper advice from a solicitor because not allowing them could cost them a lot of money if they need another solution ,so you need to be sure because if you get it wrong it could cost you .
Advice given is not legally qualified and you are advised to gain a professional opinion

Collaborate
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Re: Scope of Easement on private right of way

Post by Collaborate » Tue Oct 03, 2017 7:45 am

The services described in the easement are those services that pass through - what your neighbour is seeking is to use your land not for passage of services, but to deliver that service itself. I agree with ukmicky. Reject their request, or negotiate a price for them to pay if you're minded to.

smileyman
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Re: Scope of Easement on private right of way

Post by smileyman » Sat Oct 07, 2017 9:05 am

Thanks guys for your comments and I think you are right. Now if the soakaway was constructed on adjacent land outside the access way and my (the servient owners) control would this create an isssue for me as servient owner in terms of maintenance lack of rights to repair etc?

MacadamB53
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Re: Scope of Easement on private right of way

Post by MacadamB53 » Sat Oct 07, 2017 10:26 am

smileyman wrote:Thanks guys for your comments and I think you are right. Now if the soakaway was constructed on adjacent land outside the access way and my (the servient owners) control would this create an isssue for me as servient owner in terms of maintenance lack of rights to repair etc?
no - the right owned by the dominant owner comes with an ancillary right to maintain/repair

pilman
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Re: Scope of Easement on private right of way

Post by pilman » Sat Oct 07, 2017 2:03 pm

to lay, relay and maintain services including pipes wires sewers
A soak-away is intended to be a method of dealing with surface water from a property. Normally this is from the roof surface where it is caught by gutters, then directed through vertical down pipes and horizontal underground pipes leading to a designated area where the soak-away is located.
That is not a sewer, which is there for the sole purpose of removing waste and soil from the property.

I cannot see how the neighbour has any right to construct a soak-way on your property, nor how he can create a soak-away elsewhere than on his own property and then lay pipes under your property to direct his surface water to this new soak-away.

Locating a soak-away on anyone else's property, or passing surface water pipes through anyone else's property will need a precisely worded easement.

The reason why a soak-away is now considered necessary is because the Sewerage Authorities will not allow surface water to be discharged into the sewerage system.

The words in the quote above will not allow what is being proposed.

MacadamB53
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Re: Scope of Easement on private right of way

Post by MacadamB53 » Sat Oct 07, 2017 3:24 pm

pilman wrote:
to lay, relay and maintain services including pipes wires sewers
A soak-away is intended to be a method of dealing with surface water from a property. Normally this is from the roof surface where it is caught by gutters, then directed through vertical down pipes and horizontal underground pipes leading to a designated area where the soak-away is located.
That is not a sewer, which is there for the sole purpose of removing waste and soil from the property.

I cannot see how the neighbour has any right to construct a soak-way on your property, nor how he can create a soak-away elsewhere than on his own property and then lay pipes under your property to direct his surface water to this new soak-away.

Locating a soak-away on anyone else's property, or passing surface water pipes through anyone else's property will need a precisely worded easement.

The reason why a soak-away is now considered necessary is because the Sewerage Authorities will not allow surface water to be discharged into the sewerage system.

The words in the quote above will not allow what is being proposed.
Hi pilman,

you're seem certain that the right to lay, relay and maintain services including pipes... does not mean a right to lay, relay and maintain services including pipes for a soakaway - is this because you do not consider surface water drainage a service?

kind regards, Mac

ukmicky
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Re: Scope of Easement on private right of way

Post by ukmicky » Sat Oct 07, 2017 5:28 pm

I would say a service is something you receive from someone else such as a utility provider
Advice given is not legally qualified and you are advised to gain a professional opinion

MacadamB53
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Re: Scope of Easement on private right of way

Post by MacadamB53 » Sat Oct 07, 2017 6:21 pm

ukmicky wrote:I would say a service is something you receive from someone else such as a utility provider
if that is the context here why would the dominant owner require such a right as being discussed - any pipes, wires or sewers in such circumstances would belong to the utility provider who have statutory powers to flex if they need to...

regardless, would the recipient of the surface water not be providing a service?

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Re: Scope of Easement on private right of way

Post by Roblewis » Sat Oct 07, 2017 7:53 pm

I agree with the broad thrust of pilman's last post. The changes brought about by sec 150 Water Industry Act 1991 and the Regulations to bring private sewers into public adoption do not permit, as I understand, the utility company to unilaterally change an existing combined sewer to foul only unless they also provide access to a clean water sewer for run-off. I see no reason for a soakaway to be constructed except for the convenience of the neighbour. Thus an easement to do so has to be negotiated, which I personally would not contemplate.

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Re: Scope of Easement on private right of way

Post by pilman » Sat Oct 07, 2017 7:54 pm

would the recipient of the surface water not be providing a service?
A soak-away is a hole in the ground filled with a material that will allow the surface water sent to this hole the opportunity of soaking away into the soil of the land beneath the hole.

To consider that this hole in the ground is a providing a "service" seems quite an extraordinary use of the English language. IMHO. :roll:
Although I realise Mac must get quite a kick out of expressing a view contrary to most others posting on this forum, because he often does just that.

MacadamB53
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Re: Scope of Easement on private right of way

Post by MacadamB53 » Sat Oct 07, 2017 8:44 pm

pilman wrote:
would the recipient of the surface water not be providing a service?
A soak-away is a hole in the ground filled with a material that will allow the surface water sent to this hole the opportunity of soaking away into the soil of the land beneath the hole.

To consider that this hole in the ground is a providing a "service" seems quite an extraordinary use of the English language. IMHO. :roll:
Although I realise Mac must get quite a kick out of expressing a view contrary to most others posting on this forum, because he often does just that.
I haven't expressed an opinion - contrary or otherwise - I've asked some questions to draw out some detail from smarter folk like your good self

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