Fitzpatrick & Ors v Spencer

Fitzpatrick & Ors v Spencer

The claimants have a real prospect of establishing the prescriptive easement as pleaded, including the discharge of sewage and foul waste, based on the evidence of historic use. The judge was wrong to summarily strike out the claim and restrict the easement to rainwater and surface waste water from cleaning the yard. The question of whether the redevelopment of the dominant tenement results in a substantial increase in the burden on the servient land is a matter of fact and degree that requires evidence and cannot be determined summarily.

Parties
Claimant: Fitzpatrick and Others; Defendant: Spencer
Jurisdiction
England and Wales
Judgment Date
13 October 2017
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment and Application for Extension of Time for Appealing
Outcome
First appeal allowed; second appeal dismissed as otiose with costs consequences.
Legal Topics
Easements, Prescription, Summary Judgment, Damages, Lost Modern Grant, Change of Use, Costs
Property Law Civil Procedure Easements Prescription Summary Judgment Damages Lost Modern Grant Change of Use +1 more

Case Brief

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Parties

Fitzpatrick and Others

Claimant

Spencer

Defendant

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment and Application for Extension of Time for Appealing

Legal Issues

  1. 1 Whether the claimants have a real prospect of establishing a prescriptive easement to discharge sewage, foul waste, and surface water through a drain under the servient tenement
  2. 2 Whether the judge was correct to summarily strike out the claim to damages for interference with the easement
  3. 3 Whether the redevelopment of the dominant tenement constituted a radical change in character and a substantial increase in the burden on the servient land

Ratio Decidendi

The claimants have a real prospect of establishing the prescriptive easement as pleaded, including the discharge of sewage and foul waste, based on the evidence of historic use. The judge was wrong to summarily strike out the claim and restrict the easement to rainwater and surface waste water from cleaning the yard. The question of whether the redevelopment of the dominant tenement results in a substantial increase in the burden on the servient land is a matter of fact and degree that requires evidence and cannot be determined summarily.

Court Disposition

First appeal allowed; second appeal dismissed as otiose with costs consequences.

Orders

  • First appeal allowed; claim to proceed to trial.
  • No order on the second appeal save that the claimants shall pay the defendants' costs of the second appeal from 24th February 2017.