London Borough of Bromley v Morritt: CA 21 Jun 1999

The defendants appealed against orders relating to the construction of a sewage pipe through their garden under powers given under the Act. The defendant had later blocked the pipe and the authority sought to recover the costs of repair. He claimed that the pipe was a drain, not a sewer, and had therefore been laid unlawfully.
Held: Whether it was a sewer or a drain depended upon the intention at the time it was constructed, and not its current use. A sewer would serve more than one property. That had been the intention, and the judgment was correct. In a second appeal, the defendant had constructed a wall enclosing land, and claimed ownership by limitation. The land enclosed included land over which there was a public right of way, and accordingly no acquisition by adverse possession was possible.
Mummery LJ said: ‘In my judgment, this appeal does fail. On the judge’s finding of fact the land enclosed by the fence and the wall was part of the public highway. As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists. The only question is the exercise of discretion to make a mandatory order.’


Swinton Thomas, Mummery LJJ


[1999] EWCA Civ 1631, [1999] 78 P and CR D37


Public Health Act 1936 15(1)


England and Wales


CitedBeckenham Urban District Council v Wood 1896
The court considered at what point a drain became a sewer: ‘The general rule, as I understand, is, that where a drain receives the sewage of two or more houses it is a sewer; where it receives the sewage of one house only it may still remain a . .
Application for leaveLondon Borough of Bromley v l Morritt CA 20-Jul-1998
The defendant sought an extension of time to apply for leave to appeal. He had been ordered to remove a wall which the claimant said enclosed what was part of the highway, and which the defendant said he had acquired by adverse possession.

Cited by:

CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedSmith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Utilities

Updated: 21 January 2023; Ref: scu.146546