Property Clinic

• Published date: 22 April 2021
• Publication title: Irish Times (Dublin, Ireland)

The original full structural survey (by the same surveyor) carried out when we purchased the house did not discover this, and there is no easement right in our title deeds. The pipe was laid about 20 years ago when a mews was erected in what was previously the back garden of our property, which is a protected structure. The planning permission for the mews house, which we inspected prior to purchasing our house, specified that the waste pipe be run to the front of the mews house rather than through our garden. However, it appears to be common practice for the waste pipes of all mews houses erected at the back of the gardens on our road to connect via the garden of the main house.

Where do we stand? Will we be expected to cover the full costs of moving the pipe, or should those costs be shared with the owner of the pipe? Do we have recourse to the surveyor who missed this?

A Houseowners who plan to build extensions invariably encounter issues with existing drainage pipes, whether its location, depth, damage or concerns in relation to neighbours. The situation you have outlined is not unusual.

There are five aspects to be considered:

(a) The planning permission

(b) The easement

(c) The original survey

(d) The cost

(e) An alternative option

In relation to (a), there is no planning permission for the existing pipe in its current location and used accordingly for 20 years. Section 157(4) of the Planning and Development Act, 2000, states that a local authority may not serve notice or take proceedings for an unauthorised development after seven years from the date the unauthorised development commenced. This is known as the "seven-year rule". It is therefore unlikely that you have any basis for redress at this stage.

In relation to (b), easements for domestic drainage pipes that traverse gardens of adjoining properties are often not recorded in the respective deeds or registered on the respective Land Registry folios. However, when such a service has been in place and used for 20 years or more without a formal grant or agreement, an "easement by prescription" may be claimed. It is therefore likely that the owner of the mews house is entitled to an easement by prescription. Furthermore, it appears the pipe was accepted in its present position by the previous owner of your house.

In relation to (c), surveys carried out on houses for structural, general condition or other purposes are normally based on what is visible and accessible to the surveyor. The surveyor's...