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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9870
Experience:  I have been practising for 30 years.
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My next door neighbour installed a new condensing boiler in

Customer Question

My next door neighbour installed a new condensing boiler in her house a week or so back. The condensing pipe was placed in my garden without my permission. As this pipe has to be 'as vertical as possible' there are technical reasons for it to remain there. Am I able to force her to apply for a way leave retrospectively ?
Submitted: 23 days ago.
Category: Law
Expert:  F E Smith replied 21 days ago.

Wayleaves are rights-of-way for cables and services. This would not be away leave. It would be an easement.

If this pipe is on your side of the boundary, (her wall is the boundary) then this is trespass and you can apply to court for an injunction to get her to remove the pipe.

Alternatively, if she doesn’t want to remove the pipe, she has to pay you for an easement and although there is no fixed cost for that, the cost of it is likely to be awarded to you by the court as compensation/damages for the pipe remaining in place rather than it being removed.

It’s probably going to be worth (estimate) about £1000 or maybe slightly less.

You cannot force her to apply for an easement, you apply to court for an injunction to get her to remove it and she defends it on the basis that removal is disproportionate to the problem and that the correct remedy is damages/compensation.

It could easily cost £10,000 of this gets to court and she would still have to pay anyway plus legal costs so if this is really on your side of the boundary, it would be ludicrous for her to defend the action although don’t be at all surprised if she buries her head in the sand.

Check your house insurance to see if you have legal expenses cover would pay for the legal costs of dealing with this.

.Can I clarify anything else for you? I’m happy to answer any specific points arising from this.

I’m happy to answer any specific points arising from this.

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If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.


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Customer: replied 21 days ago.
Thank you for this - I may have supplementary questions. I will "fall back and regroup"
Expert:  F E Smith replied 21 days ago.

No worries. When you are ready. :-)

Customer: replied 20 days ago.
Hello againI am covered under my house insurance mercifully and they may take the case up depending on winnability.I should have added previously that the ground that the pipe terminates in, was ceded to me in 'adverse possession' following the erection of a shed (by my then neighbours) in the mid-1990's, which blocked access to the flank wall of their house. The current OS map clearly shows the ground in my possession now. I would not have thought this affected my current rights but you may have a view on that.The next question is about my obligations regarding the pipe should it remain on my land. This condensing pipe is a 36mm OD HDPE thing about 17ft high terminating in an elbowed arrangement at ground level running about 5-9in horizontally before going into the ground (and presumably a soakaway below ground level - how deep currently unknown). It is not lagged and therefore vulnerable in low temperatures. (photos available). Given the crucial nature of this pipe to the safe and stable operation of their boiler, what steps should I take to avoid liabilities. Needless to say that ball games for junior visitors to my home will be disallowed now in case the pipe gets damaged. The physical space it occupies is one thing (not much) but the 'safe zone' it creates for itself is another. I would be interested in your comments on that.Thank you for your time.
Expert:  F E Smith replied 20 days ago.

Thank you for the extra information. Good news about the insurance. Fingers crossed.

You may have this land by adverse possession but it’s still yours. It doesn’t change my view on this.

With regard to the potential damage and vulnerability of the pipe, it will be warm in winter when the boiler is running and therefore not prone to freezing. Nonetheless, you have a valid point about it getting damaged with children playing football et cetera and I suggest you make it a condition of granting the easement that the pipe has some kind of substantial protection around it sufficient to protect it from (for example) a football or suchlike.

You might want to bring that to the attention of the neighbour now, telling them that as this is trespass, you will not be liable for any damage caused to the pipe by children’s games. Although they may want to argue that whoever damaged the pipe was negligent, my submission to them would be that it was negligent of them firstly to place it where it trespasses and secondly, to fail to protect it from damage. Better you raise that issue with them now.

Customer: replied 16 days ago.
Thank you for that - I have another question re my obligations regarding this situation.What provisions do I have to make to allow access for maintenance/inspection of the flue - let alone the pipe ? The flue is 17ft up (correction of previous = the pipe goes up 12ft not 17ft). I presumably cannot deny access to work on the external features of their system, whether on the ground or flying over it. What terms are recommended in any agreement ?If a workman falls and injures themselves in the course of the work on my premises on a third party system, would I expect the workmen to have their own cover ? What if they don't and come after me for one reason or another ?Many thanks for your time.
Expert:  F E Smith replied 15 days ago.

Because the thread is now a week old, I no longer get notifications that you are waiting. Hence, there may be a delay getting back to you if I don’t notice.

Under the Access to Neighbouring Land Act you have to allow reasonable access for any action required to “preserve” (maintain) the neighbouring property. There is no definition of what is reasonable and it’s what’s reasonable in the circumstances.

You are only liable in negligence if some action or inaction of yours caused any injury. If they simply fall off the ladder, then it comes down to them. I’m not aware that flues like this actually need any routine maintenance other than a quick inspection once every few years.

If the workmen decides to come after you regardless, then you have to defend the claim and in that respect, would normally pass them on to your house insurer

Customer: replied 15 days ago.
Many thanks for all this. I am now much reassured on these points and will know what to expect.
Expert:  F E Smith replied 15 days ago.

I am glad to help