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Fitzpatrick v Spencer (LTL 16/10/17, ChD)

Greville Healey acted for the successful appellant in an appeal concerning the extent of an easement of drainage acquired by prescription.  The judge below had struck out the parts of the claim based upon the asserted easement, on the basis that there was no real prospect of the claimant establishing an easement to drain sewage as well as surface water, but on appeal Morgan J. held that the scope of the easement had to be decided at trial.  The judge below had also held that it was self-evident that the proposed new activities would involve a substantial increase or alteration in the burden on the servient tenement (and so the Claimant would inevitably fail the test in McAdams Homes Ltd v Robinson [2004] EWCA Civ 214), but Morgan J. held that this was not self-evident, particularly because the drain ran to the public sewer, and the servient owners discharged sewage into it themselves.  The judgment of Morgan J. discusses  interesting issues about the extent of easements acquired by prescription, and the relevance of the impact of the exercise of an easement on the servient tenement. 


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