Common pipelines; easements, ownership and liability #2

One recurring topic of 2010 is the Ownership and liability of common water, sewer and gas pipes.

When we send out an emergency response team to a ruptured gas or water pipeline or an overflowing sewer, the first thing our team thinks about is rescuing the property under threat. Often, it is after the emergency that ownership and liability of the problem are hotly debated.

This series of 3 blog posts is aimed at clarifying some of that debate.

Our friends at the Law Reform Commission have helped to clarify this interesting subject and in part it reads:

A user of a service may attempt to disconnect the joint service and force other users of the service to bear the cost of a direct connection to the main service. Such action will however, be illegal unless conducted in accordance with the Water Board Act 1987 (Water Board (Plumbing and Drainage ) Regulation 1989),2 or a court order declaring that the common user of the service has a right to discontinue the service.

The creation of permanent rights of access is seen as a means of avoiding problems of access in respect of utility services, and applications have been made to the courts over the years to have access to and over utilities such as water pipes and sewers recognised as easements of necessity. The courts have, however, gone to considerable lengths to hold that although such an easement may be considered by a landowner to be essential for the reasonable enjoyment of property, it is not an easement of necessity, because at law, easements over such services are not considered necessary to the land itself.

Although DP 22 raised the possibility of statutory recognition of these “trespassing” services as a means of rectifying the problem, the Board of Surveyors pointed out in their submission that few authorities know with any exactitude the location of their service lines. Consequently, the Board of Surveyors opposes the creation of statutory easements over them until such time as they are properly defined on title. The Commission agrees that such a step may be expensive and premature at this stage. It would seem desirable however, that steps are taken in the long term by the relevant authorities to locate such services, properly record them and establish the appropriate rights over them.