Until 2009 Edward Coombs was the registered proprietor of an estate which

Until 2009 Edward Coombs was the registered proprietor of an estate which comprised a house set well back from the main road, a greenhouse (built in 1990) in the garden, a drive connecting the house to that road and (between the house and the road on either side of the drive) a grassed area of land. The drains from the house ran alongside the drive to the main road.In 2009 Edward sold and transferred the house and garden (including greenhouse) to Petra Webster whilst retaining the rest of the estate. In the transfer Petra was granted a right of way over the drive to the main road conditional on her complying with a covenant to contribute towards its maintenance. The right was registered when Petra was registered as proprietor.  Petra used the greenhouse until 2011, when ill-health prevented her continuing her hobby of growing organic vegetables. In 2013, she sold and transferred the house and garden to Ben Sheldon. In January 2024, Edward sold and transferred the rest of the estate to Chris O’Hare. Chris intends to build on the grassed area.  A week ago the two neighbours had an argument in which Chris told Ben that Ben’s drains were in the way of his building work and that Ben must move them off Chris’s land. Ben said he would no longer contribute towards the maintenance of the drive but Chris said, in that case, he would lock the gate between the main road and the drive to prevent Ben from using it.Ben is also concerned that the owner of the adjoining land for the past 25 years, Nadia Brown, has started to build an extension to her house close to the boundary between her land and Ben’s. This will block out the sunlight to the greenhouse in Ben’s garden. Ben, like his predecessor, is a keen gardener.

Advise Ben whether:

(a)he can be forced to move the drains; ID the right being claimed, the lands DT and ST.The right is being claimed by Ben. Ben has the house and garden, is the DT.Chris has the ST as he has the remained of the land, including the drive way.The right here is to pass the drains along the main road.Is the easement valid?The drains run along the main road.

See Re Ellenborough Park:

• There must be a dominant and servient tenement (there are) • The right must accommodate the dominant land (it is, it gives it the benefit to pass the drains) • The two plots must not be owned and occupied by the same person (satisfied)

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