Water pipe easement

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Hacker
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Water pipe easement

Post by Hacker » Sun Mar 04, 2018 3:17 pm

A neighbour has a prescriptive right to run a water pipe through my garden

The neighbour has requested a new water pipe and wants to dig up my garden to lay it

Can he now do this under the existing prescriptive right or should I ask for a new formal deed of easement ?

mr sheen
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Re: Water pipe easement

Post by mr sheen » Sun Mar 04, 2018 4:30 pm

If he has an easement for the water pipe it may expressely state with right to repair &replacevsubject to making good of any damage; and even if it doesn't expressely say that it would be considered an ancillary right unless it it expressely excluded

Hacker
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Re: Water pipe easement

Post by Hacker » Sun Mar 04, 2018 5:56 pm

Thanks for the reply.

There is no existing formal agreement or easement. The pipe has always been there.

mr sheen
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Re: Water pipe easement

Post by mr sheen » Sun Mar 04, 2018 6:50 pm

If it's 'always been there' then an easement exists.
Doesn't have to be in writing when 'it's always been there'

Hacker
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Re: Water pipe easement

Post by Hacker » Sun Mar 04, 2018 7:45 pm

Thanks Mr Sheen,

The issue is that the existing use of the neighbour's property is as an office and the neighbour wants to convert the office to residential. He wants to replace the existing water pipe with a new pipe, by digging up my garden.

mr sheen
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Re: Water pipe easement

Post by mr sheen » Sun Mar 04, 2018 9:08 pm

Your garden has to be returned to a reasonable state similar to how it was before the works at his expense.

Water pipes are subject to strict regulations so it may be worth checking regs and if replacement has to be checked by water provider in your area

MacadamB53
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Re: Water pipe easement

Post by MacadamB53 » Sun Mar 04, 2018 11:46 pm

saxondown12 wrote:A neighbour has a prescriptive right to run a water pipe through my garden

The neighbour has requested a new water pipe and wants to dig up my garden to lay it

Can he now do this under the existing prescriptive right or should I ask for a new formal deed of easement ?
yes - it’s called an ancillary right.

kind regards, Mac

stufe35
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Re: Water pipe easement

Post by stufe35 » Mon Mar 05, 2018 8:41 am

Why does the pipe need renewing ? Is it leaking ?

Just keep an eye when the work is being done that another service doesn't get thrown in the trench---I believe a separate £££ negotiable easement would be needed for this.

He has a prescriptive right for one supply pipe. (assuming its one office/premises.)

If he is splitting the property into more than one residential unit im thinking water people will be insisting on separate supply to each dwelling. Being suspicious is this the reason for the pipe suddenly needing renewing ? ie whilst the trench is open he will accidentally be chucking in 2 or 3 more pipes and who knows a broad band cable whilst you are not looking ?

Im not sure about the above...its just sort of thinking out loud...having seen this happen in the past ....im a suspicious type !

However I do agree they have absolute right to carry out like for like replacement. The work shall be carried out in a reasonable manner. If it were mine I would insist the pipe is continuous under my property (ie no joints) to reduce the likely hood of future failure. Also you could consider with them the option of putting the pipe in a duct such that if ever work needs doing to replace the pipe again it wont involve digging up your property. Cost of duct would be minimal compared to overall job.
Last edited by stufe35 on Mon Mar 05, 2018 9:10 am, edited 1 time in total.

Collaborate
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Re: Water pipe easement

Post by Collaborate » Mon Mar 05, 2018 8:46 am

Just to reinforce what is mentioned above:
Can the ancillary right of repair include replacement?

In Hoare v Metropolitan Board of Works (1873-74) LR 9 QB 296 the court considered whether a new sign post could be erected to replace a sign post which had been blown down by the wind.
Blackheath common (heath) was a common within the meaning of the Metropolitan Commons Act 1866 (MCA 1866). The heath was placed under the management of the Metropolitan Board of Works (MBW) by a scheme, which was confirmed by the Metropolitan Commons Supplemental Act 1871. Paragraph 13 of the scheme secured to all persons such estates, interest or right as they had before the confirmation of the scheme. MBW made a bye-law forbidding the erecting on the heath of any posts or poles, or any building of any kind, without the consent in writing of MBW.
The court found that for more than 40 years, a sign post with the sign or name of a public house had stood on the heath opposite the public house. As a result, an easement had been obtained in favour of the public house. The sign post had been blown down by the wind and replaced by another. The question for the court was whether the appellant had the right to erect the new sign post without the consent of MBW in writing. Although it was not a fully reasoned judgment, the court held that the appellant had such a right on the grounds that:
The easement was a beneficial right preserved by the MCA 1866 and paragraph 13 of the scheme.
The right existed of repairing the sign post whenever it was broken, as a right incident to the easement.

Does a dominant owner have a right to install a new pipe over a route different from that taken by existing pipes on the servient land?

In Martin v Childs the dominant owners wished to enter the servient land to install new water pipes along a new route due to problems experienced with the supply from the existing system. The Court of Appeal held that the installation of a new water pipe along a new route was not covered. In reaching this conclusion, the court considered the meaning of the word "installing" in the context of the grant and having regard to the circumstances existing at the time of the conveyance and known to the parties or within their reasonable contemplation.
In this instance, a right had been granted:
"… to run water electricity and other services through any pipes cables wires or other channels or conductors ('the Conduits') which may at any time during the period of Eighty years from the date hereof be in or under or over the Retained Land and a right to enter onto so much as shall be reasonably necessary of the Retained Land for the purpose of installing repairing renewing maintaining cleansing and inspecting the Conduits…" (emphasis added)
A distinction was drawn between "the principal right", being the right to run water and other services through the conduits on the retained land, and the activities set out in the second half of the clause (see emphasised wording), which were designed to ensure the enjoyment of the principal right.
Mummery LJ explained that:
So far as water was concerned, there were pipes already in position in the land and water was running through them. The easement was clearly in respect of running water through those pipes and not through any other pipes.
The second part of the clause dealt with the right to enter into the retained land. The specific purposes were for installing, repairing, renewing, maintaining, cleansing and inspecting the conduits.
In this context, the word "installing":
more appropriately referred to the provision of other services where there was not, at the date of the conveyance, an existing pipe, cable, wire or other channel; and
did not confer the right to alter the position or size of the existing pipes for the running of water.
The dominant owners therefore had no right to install a completely new system over a route different from that taken by the existing pipes on the servient land. For more information, see Legal update, Construction of rights ancillary to an easement.
However, this decision has been distinguished in Dixon v Hodgson [2007] 1 EGLR 8 (see Does a right to use and connect entitle the dominant owner to lay a new pipe to connect to an existing drain on the servient land?).
I would however query why they want to replace the existing pipe. Does it not supply sufficient flow, so they want a larger pipe? That is more than replacement.

jdfi
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Re: Water pipe easement

Post by jdfi » Wed Mar 07, 2018 10:04 pm

Does your own water tap into this pipe also?

jonahinoz
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Re: Water pipe easement

Post by jonahinoz » Fri Mar 09, 2018 6:56 pm

did not confer the right to alter the position or size of the existing pipes for the running of water.

Hi,

So the easement allows the pipe to be repaired, maintained, and replaced. But does the easement include "improving the utility" of the pipe, so it may carry a lot more water?

I think water pipes have to be 600mm below the surface. In Days of Yore, they were often a lot shallower than that. Would digging deeper be covered by the easement?

John W

Hugh Jaleak
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Re: Water pipe easement

Post by Hugh Jaleak » Fri Mar 09, 2018 8:39 pm

Going to be pedantic, sorry. The current regs say min 760mm deep for a water service to protect from frost.

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Re: Water pipe easement

Post by MacadamB53 » Fri Mar 09, 2018 11:18 pm

Hugh Jaleak wrote:Going to be pedantic, sorry. The current regs say min 760mm deep for a water service to protect from frost.
don’t apologise - you are being accurate, not pedantic

jonahinoz
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Re: Water pipe easement

Post by jonahinoz » Sat Mar 10, 2018 9:07 am

Going to be pedantic, sorry. The current regs say min 760mm deep for a water service to protect from frost

Hi Hugh,

Be as pedantic as you like ... I prefer to know in advance if I'm going to do something illegal. It gives me the option of not doing it, or preparing my cover story in advance. I usually try to keep my nose clean, if possible.

In this instance, I an very happy to be brought up to date .

John W

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