Summary

Where there was no correlation between use, by the claimant and defendant, of water raised from a bore hole on the defendant's land and maintenance costs, a declaration that the cost of supplying water be borne rateably by the users could not be justified.

Facts

In the first of two appeals arising out of a neighbour dispute, the defendant ('T') in proceedings before Mr Recorder Evans on 21 March 2002 appealed against the order that the costs of supplying water through a bore hole and the costs of repairs, maintenance and replacement be borne rateably by the users. The second appeal related to proceedings before HH Judge Barham on 22 July 2002 regarding the position of the eastern boundary of the claimant's property. The claimant ('K') was the registered proprietor of a cottage, which included in the title the right for K to use a bore hole situated on T's land, and pipes for the supply of water to his property, and the right to enter for maintenance and repairs. The bore hole operated by a submersible pump and filtration plant, which was the property of T. T and K had had an informal arrangement whereby they shared the maintenance costs. In April 2000, K put his cottage on the market, and T requested that K inform potential purchasers that there was a right to draw water from the bore hole on his land, but no right to use the pump and filtration plant. T then offered to buy K's cottage, to which K agreed until he was offered a higher price by a third party. T's solicitor wrote to K stating that the filtration unit required replacing, that T was not prepared to continue providing pumped and filtered water for K's use, and that K would have to make his own arrangements for the extraction of water from the bore hole. K sought and was granted a declaration that unless K became the sole beneficiary of the right to use the bore hole, the parties would share the cost of its maintenance, that K be at liberty to renew the pump, and that when mains water supply became connected to T's property, K be entitled to connect to it. In reaching his decision the recorder referred to Duke of Westminster & Ors v Guild (1985) QB 688 and Rance v Elvin & Anor (1985) 49 P&CR 9. On appeal, T argued that there was no parallel between Elvin (supra) and the present case as in Elvin there was a clear correlation between the use of water and the charge, while in the present case the costs of maintaining the supply were not related to use by anyone in particular. T further argued that there was no evidence from which the recorder could predict that the costs should be allocated in accordance with usage as prescribed by his declaration. K argued that the order should be upheld on the basis of the principle of benefit and burden. The second set of proceedings related to a boundary dispute between T and K. An order had been made in 1998 following a dispute between the previous owner of the cottage and T that the northern boundary of the cottage property could be determined by reference to a line on plans drawn up for the construction of a wall in 1994. K instituted proceedings claiming that the eastern boundary could be determined by the 1998 order. The judge considered the evidence of plans drawn up in 1988 and 1994 when walls were constructed and granted the declaration sought. On appeal T argued that the judge had failed to consider the true extent of the land conveyed when the land was first split and sold in 1990, and had failed to appreciate that at the time of that conveyance, the only physical boundary was a line of posts.

Held

(1) The principle of benefit and burden applied to deeds or documents that imposed a positive obligation not normally enforceable against successors in title. Guild (supra) and Elvin showed that there was no obligation to contribute transmissible to successors in title to the right. The recorder's conclusion was not justified on the basis of benefit and burden, and could be justified only on the basis of quasi-contract and whether a term could be implied to require T to incur repair expenditure. There was no correlation between use and cost. The declaration made, which would have been binding on successors in title, could not be justified. (2) The judge's approach was erroneous. The property register was the best evidence of what had been conveyed in 1990. It was essential to ascertain the physical facts on the ground at the time of the conveyance of 1990, which were inherently capable of delineating the boundary.

Appeals allowed.