THE LAW AT PRESENT
5.1 Some properties are serviced by means of pipes, for sewerage or drainage, passing through neighbouring land. In most of these cases a valid easement will have been created in favour of the property being serviced.1
5.2 If such an easement exists, the common law recognises the right of the owner of the serviced land to enter onto the other’s property in order to carry out any necessary repairs to the pipes or drainage.2
5.3 Moreover, in some cases the owner of land who benefits from an easement is obliged to carry out repairs, or be liable for damage which would otherwise result to the surrounding property, for instance damage resulting from faulty pipe or sewer lines.3
5.4 It may be, however, that notwithstanding the fact that a landowner’s service pipes pass through another’s land, no valid easement was ever created. In such circumstances a purchaser of the burdened property may not only refuse access to repair, but may also apply to the court for an order to have the pipes removed.
Easement of necessity
5.5 An easement of necessity has been defined as
an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property.4
5.6 Earlier in this paper (at para 4.10) reference was made to the possibility of an easement of necessity arising at common law in cases where the land that lacks an easement cannot be used at all. An easement of necessity could arise where a property becomes “landlocked”, that is, where an owner is without access to or from her/his property because all surrounding land belongs to others. In such circumstances the courts have found that an easement of necessity in the form of a right of way exists only when the right claimed is essential and not merely a matter of convenience.5 An alternative right of way that was inconvenient would invalidate any claim for an easement of necessity,6 as would only a temporary obstruction or the difficulty or expense of creating alternative access.7
5.7 In Pryce and Irving v McGuinness8 it was found that the supply of a service such as drainage, is a matter of convenience and not a necessity. Consequently an easement would not exist.
5.8 One recent case that demonstrates the difficulties some landowners face and the costs which must be incurred as a result of the failure to create an easement is Industrial Non Wovens Pty Ltd v Wieder.9 There a landowner’s property backed onto another property and both blocks had street frontage. The landowner’s block lay on a downward slope from its fronting street. At some time in the past, sewerage pipes from the landowner’s property had been installed so as to lie beneath the neighbouring property and draining into the main located in the front of that neighbouring property. This was done, presumably, to avoid having to pump the sewerage from the landowner’s property uphill to the nearest main. Unfortunately for the landowner, no valid easement was ever created for the laying of the pipes through the neighbour’s land, and a purchaser of the neighbouring block applied successfully to the court for an order to have the trespassing pipes disconnected.
5.9 The outcome was that the Water Board, acting under its statutory powers, extended the sewer main located under the street fronting the neighbour’s property, through the neighbour’s property to the landowner’s. Thus, where the landowner’s pipes had formerly run beneath the neighbouring property carrying sewage to the main, the main in effect now came up to the landowner’s property, also through the neighbouring land. The problem of stormwater drainage, a matter within the authority of the local council and not the Water Board remained unresolved. The cost of extending the sewer main was $21,000 of which two-thirds was met by the Board and the remaining third by the landowner.
5.10 Existing statutory provisions enabled the landowner’s property to enjoy the benefit of a service, delivered in what was presumably the most practical way in the circumstances, namely via the neighbouring property. The obvious drawback in this case was the cost, financial and otherwise, in duplicating the existing means of delivering that service.
DEFECTS IN THE PRESENT LAW
5.11 The problems that arise in the absence of a valid easement are apparent. The question which arises is whether there should be a statutory right to have pipes traverse neighbouring property if circumstances require. If such a right is granted a right of access to repair or maintain such services would almost automatically follow.
PROPOSALS FOR REFORM
5.12 In the absence of such an easement or statutory right there is no legal obligation on the neighbour to allow access for the purpose of repairs. In that case a scheme which allows access for “one-off” instances of repair, such as that proposed by the UK Law Commission (referred to in Chapter 4) and followed by the Tasmanian Law Reform Commission could be extended to apply to access to a neighbour’s land to repair sewerage, drainage pipes or joint services on a neighbour’s land. It need not be limited to access to neighbouring land to repair only fixtures on one’s own land. However the problems associated with access to neighbouring land to maintain services where no easement exists could cease to be a problem if a statutory right to have joint services traverse neighbouring property (dealt with in Chapter 6) is granted.
QUESTIONS FOR DISCUSSION
5.13 The issues raised in Chapter 5 are closely linked with those dealt with in Chapters 4 and 6. The Questions at the end of those chapters are relevant to this chapter.
FOOTNOTES
1. See para 6.6.
2. In Jones v Pritchard [1908] 1 Ch 630 at 638 Parker J said:
(T)he grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Thus the grantee of an easement for a watercourse through his neighbour’s land may, when reasonably necessary, enter his neighbour’s land for the purpose of repairing, and may repair, such watercourse. See also Goodhart v Hyett (1883) 25 Ch D 182, Spear v Rowlett (1924) 43 NZLR 801 at 803.
See also Hemmes Hermitage Pty Ltd v Abdurahman unreported, Supreme Court of NSW, 22 March 1991 where it was held that at common law rights of deviation or repair of an easement, including a right of footway, were implied in order to make the grant of the easement effective.
3. In Jones v Pritchard, (id) His Honour went on to state:
(T)here is undoubtedly a class of cases in which the nature of the easement is such that the owner of the dominant tenement not only has the right to repair the subject of the easement, but may be liable to the owner of the servient tenement for damages due to any want of repair. Thus, if the easement be to take water in pipes across another man’s land and pipes are laid by the owner of the dominant tenement and fall into disrepair, so that water escapes on to the servient tenement, the owner of the dominant tenement will be liable for damage done by such water.
4. Union Lighterage Co v London Graving Dock Co (1902) Ch 557, per Stirling J at 573.
5. A Bradbrook and M Neave, Easements and Restrictive Covenants in Australia, Butterworths, Sydney 1987 at 60 para 414.
6. McLernon v Connor (1907) 9 WALR 141 FC.
7. Tarrant v Zordstra (1973) 1 BPR 9381.
8. [1966] Qd R 591.
9. Unreported, Supreme Court of NSW Eq Div No 4968 of 1987.
