Easements

sallylightFoot

We bought a field behind our house 7 years ago and planned to turn it into a wild flower meadow and wildlife habitat. We have planted circa 50 trees and over 1000 wild flower plugs during the years and it is now becoming a fabulous area both for wild flowers, birds and small mammals such as voles, toads and grasshoppers. We live in flood zone 3 area and the soil is wet and is mostly clay so we have tried very hard to replace many of the old field drains which were cracked or blocked. We knew we had a covenant on the field for next doors septic tank as their property used to be part of the field, prior to  a parcel being sold in 1967 and their house being built there. Our neighbours (moved in in 2018) now want to build a very large extension (it is a two bed bungalow at present but they're a young couple with a new baby who want more kids) which amounts to almost half the house again. On their planning application we noticed they state they have a soakaway in our field for their surface water, something we had no knowledge of at all and is not mentioned in any of the deeds, covenant docs we have. We tried to make this clear to our local planning dept but they were not interested and approved the plans anyway. However after numerous times of asking for details of the soakaway, their legal right to put a downpipe onto our field, and also asked why have they, nor the previous owners, have ever asked us to examine or maintain the alleged soakaway nothing has been forthcoming. I have searched the internet and found they cannot claim an easement by prescription as it has been done secretly and without the knowledge of the fields owners since the house was built.  There have only been 2 previous owners, one who sold the parcel of land (to his brother who build the house) and one other before us who had it from 1977 to 2013. We are  100% sure the initial seller (the brother) did not want a soakaway in the field because on his covenant for the septic tank being sited on the field it specifically states the field drains can be accessed by the drain from the septic tank  for waste water from the said tank "...but for no other reasons whatsoever". We also know the second owner, (one before us) was very protective of the field and wouldn't allow anyone onto it for any reason. We asked him once if he needed help as he was cutting the grass with a scythe but he refused saying we couldn't go on his land! We now feel we have a good case as it appears the original owner just stuck a downpipe from his house gutters into a buried pipe that went into our field (don't think there is a soakaway at all), in fact the present owner actually stated in a message to me he thinks that might be what happened! We don't want to give permission for a soakaway as our field is very wet as it is, but even if we did as our water table is very high most of the time the land would not conform to Building Regs requirements. Does anyone know whether they can claim an easement for 'long use' even though this was a trespass onto the land and has been done without the knowledge or permission of the landowner? Sorry for the long story but thought it better to tell the whole story.

princeofpounds

It's very hard to read your post. Please paragraph it, you will get more replies if you do.

Correct me if this is wrong OP:

TL;DR:
- I own some land. It's wet and I don't want it to get wetter.
- There is a covenant for next door to use the land for a septic tank and drainage field from that septic tank.
- Next door want to build an extension, and as part of that process have claimed they have an easement by prescription for a soakaway (as distinct to the septic tank) on my land, due to long term use.
- I don't think they should have this easement, as we didn't know they were draining into our land, and I believe this may count as hidden use and therefore not qualify for an easement.
- We don't think the two previous owners knew either, but we have no evidence at the moment.

OP, to be clear, the water that the neighbour is draining is just rainwater from the gutters? Or household water too? 
Also, where is this hidden pipe? Is it totally separate to the septic tank?

Planning will not care about easements (or building regs for that matter) because that is nothing to do with planning. They only care about planning policy. You can apply to build a multi-storey car park on Buckingham Palace if you like. It doesn't mean that you can legally do it even if Planning say yes. Planning are not going to make a determination on whether the soakaway is legally valid or not - all they care about is whether one exists, and it does (regardless of potentially shoddy construction).

Furthermore, you keep mentioning 'without permission'. The whole point of an easement by prescription is that it is without permission. You will need to demonstrate one of two things to cause problems for the neighbour:
1) The drainage is being done under a license - i.e. revocable permission was given. Or,
2) The drainage was being done secretly, and so the clock for the easement by prescription is only starting now.

The first option seems unlikely unless you have good contact with previous owners.

So you are left with option two. The basics around this situation are covered in the article below, but the general idea is:
- Underground pipes are in themselves typically seen as 'secret' use of land. However...
- The neighbour may be able to claim that the excavation for the drainage pipe was evident to a previous owner
- The neighbour may be able to claim that it should have been obvious to you that they would have to drain into your land. (If this seems like a slightly tortuous legal precedent, my guess here is that courts are often reluctant to deprive people's homes of essential services on legal technicalities).
https://www.geldards.com/uncovering-the-secrets-of-prescriptive-service-easements.aspx

You will need to take legal advice, then sue for an injunction against the drainage if you have a case.

greatcrested

Start posting in readable paragraphs - nightmare to follow your post!

Where did you think the outflow from the septic tank was going? The 'field drains'? Which you say were blocked? Yuck!

If the outflow actually goes to a 'drainage field' (a 'soak-away' is for clean rain water eg off a roof) the drainage field will need to be extended to handle the increased volumes once their extension is built.

But you really need to investigate what exactly exists on your land.

And where do the field drains go? Under the new 2020 rules, septic tanks cannot run off into a watercourse which is what I suspect the field drains are. Do they eventually go to a river?

Frankly with the new rules, either

* you /they need to formalise the agreement for a septic tank and new extended 'drainage field' - which assumes the soil is suitable for this. If the outflow seeps to quickly, or too slowly, into te ground, or the ground water level is too high, a drainage field is not possible.

* a treatment sewage system. The outflow from these is near drinking water quality and CAN go into a watercourse.

As for the access/rights, it's very unclear what rights they might or might not hae. But I'm sure involving the Environment Agency would soon result in the neighbours' sewage system being forced to be regularised to meet current rules, which they'd either have to doon their own land, or on yours with your consent.

Alternatively, Building Control may well get involved once the extension is being inspected, as no doubt it will involve sewage management (which will have o comply....)

Davesnave

If you want more people to read them, long stories are better broken into paragraphs.

Despite being long, your story is short on detail proving the drain to this soakaway was installed surreptitiously and not with the tacit agreement of a previous landowner, but even if it was the effect of being there over 20 years is the same. The condition in the covenant relates only to your field drains, not another installed by a third party, but it's certainly useful to have it there.

We're in exactly the same position regarding a septic tank drain field on our land. We're told it was done with approval from a previous owner, but there's no proof one way or the other, so it's assumed to be a right by prescription. However, with the recent changes in the regs for septic tanks, a reinstatement of the drain field won't be possible when it silts up and its owners will be stuck, regardless of it's legality as a right by prescription..

Similarly, it isn't the council planners' job to rule on the adequacy or legality of this soakaway, but it's a different matter when it comes to building control and meeting regulations. At that point, the adequacy of the arrangements will be relevant, so your best bet is probably to approach building control with your concerns at an early stage. It may be that other arrangements are possible if the neighbours are motivated to find them.

(edited to clarify position on prescriptive rights.)

princeofpounds

Hi folks - I just want to highlight something that may be being missed in what are otherwise good replies.

It seems that the drainage that is being complained about is NOT the drainage from the septic tank. It appears to be a separate drainage coming from a downpipe from the roof (and possibly some other internal drains as well, hence one of my questions to the OP).

I could be wrong, but the initial post is entirely vague on how the septic tank and this other pipe are related. I hope the OP will clarify this.

sallylightFoot

Thank you all for the comments, it was my first posting so not sure of the 'rules'.

The septic tank does have a legal right to be in our field and to connect to the field drains - no problem there.

It is the surface water downpipe that we have issues with. It seems it was put there initially without permission, and without the knowledge of the field owner (hence secretly). We never realised it was there when we bought the field as there is nothing in any of the conveyancing documents relating to it. Also the houses surrounding this one (ours included) all have soakaways built within their own boundaries, and consequently this issue was never even considered by us until their application to extend.

Our point is whilst we were fighting a losing battle to keep the field dry enough for our wildflower meadow, unbeknown to us our neighbour has been discharging his surface water drainage all this time, and his extension will increase this drainage by 61,400 litres per annum!

We are certain there was no permission given as we have checked each of the legal documents we hold, including the sale documents of the property concerned as it was part of the field up to 1967. 

What we want to find out is what we can do to stop him, no only discharging the current surface water but obviously also the extra water from his proposed extension.

Thank for all the help 

sallylightFoot

One more thing to clarify as it is NOT the septic tank we have an issue with.

However as the septic tank Covenant states that the septic tank CAN be connected to the field drain but goes on to  state "....but not for any other use whatsoever..." hence our belief that the original seller did not give permission for the separate surface water drainage discharging into the field. 

AdrianC

Will it make a big difference to how wet your field is or is not if this soakaway is one side of the fence or just the other side?

sallylightFoot

AdrianC said:

Will it make a big difference to how wet your field is or is not if this soakaway is one side of the fence or just the other side?

Of course it will. As I stated previously all the other houses around discharge into their own gardens. We live in a zone 3 flood area with clay soil and consequently any water discharge, however small makes a difference. They ought to contain it in their own boundaries like everyone else.

Of course it is not the fault of the present owners, it is just unfortunate that they decided they want to extend and have now opened this can of worms!

princeofpounds

Thanks for the updates Sally. 

In that case I don't think anything changes from my advice above. This is a legal matter that will revolve around arguments concerning 'secrecy' and you should get a legal opinion from a specialist who will be familiar with all the case law. Particularly with regards to the arguments I mentioned.

By the way, in at least two of your follow-up posts you have talked about 'permission'. As I said earlier, this is a red herring. Easements by prescription are acquired by definition without permission. With permission, it would merely be a license of some kind. 

sallylightFoot

Thanks Princeofpounds, you are correct easements by prescription are acquired by definition without permission. 

Our only hope  to counter a claim  for an easement is that it has been done in secret, as we have never be aware of this situation, we assumed their surface water was discharging into a soakaway in their garden. Looking at the back of their house (facing our field) you just see a drainpipe going from their gutters into a grid below. There is nothing visible at all in the field around the property to suggest a soakaway is sited there.

I guess my main worry is if there is a loophole in the law where they can just say it's been doing this  since 1967 so we have a right to keep it discharging there!