The use to which particular plots of land may be put will inevitably alter over time, as ownership changes hands, and as areas of land are sub-divided and subsequently sold off for redevelopment. A fairly common problem faced by developers in such circumstances is the extent to which rights of way, drainage, or other similar easements previously enjoyed by such land may continue to be exercised in a manner commensurate with the changed circumstances of the developed land.

A particular issue is establishing the point at which the changed use of the land, and/or the increased use of the rights granted, may restrict or prevent the continued exercise of those rights. The precise terms of an easement that was the subject of an express grant (or reservation) can, to some extent at least, be ascertained from the wording used in the relevant deed, although arguments over interpretation may still arise. Rights arising by implication, by prescription/ long enjoyment, or by statute can cause more difficulties.

The decision of the Court of Appeal in McAdams Homes Ltd v Robinson & anr [2004] reviews previous case law and provides some guidance for developers faced with such issues.

Factual background

An old bakery site was redeveloped into two new detached houses. The bakery site and adjoining land had previously been in common ownership and, when the bakery site was sold off in 1982, it continued to enjoy implied rights for foul and surface drainage across the adjoining land, connecting to the public sewer (the 1982 drainage easement). Upon discontinuance of the bakery use and the commencement of construction of the new houses, the adjoining owners blocked off the drains across their land. As a result, the developer had to construct an alternative means of drainage, the cost of which the developer sought to recover from the adjoining owners, on the basis that they had unlawfully interfered with the 1982 drainage easement.

The issue before the Court of Appeal was the continued right for the redeveloped land to enjoy the 1982 drainage easement.

Reviewing the authorities

Whilst indicating that each case would turn on its facts, the court nevertheless considered that certain principles could be derived from the authorities and drew upon a number of these in reaching its conclusions in the present case:

(1) There could be no objection to intensification of use of the easement (however substantial) where the use of the land itself remained substantially unchanged – for example, an increase in the number of vehicles using an access to a caravan park (British Railways Board v Glass [1965]), or the taking of water from a pond for the benefit of agricultural land originally used for watering animals, despite the increase arising through subsequent arable use of the land (Cargill v Gotts [1981]).

(2) Excessive use of the easement will constitute a nuisance – for example, in the case of a drainage easement, by the intensified use of the dominant property to such an extent that the liquid discharged through the drain overflows or, in the case of a right of way, changing the use from a small dwelling house to a large hotel (British Railways Board v Glass again).

(3) The benefit of the easement will continue in circumstances where, although new buildings are constructed on the dominant land or the use of that land changes (however radically), the nature or extent of the use of the easement is unaffected – for example, where agricultural land that enjoyed prescriptive rights to drain surface water over neighbouring land was redeveloped into a housing estate, the right to drain was preserved by reason of the developer putting in place a water drainage scheme to ensure that the quantum of surface water passing over the neighbouring land remained wholly unaffected by the change of use (Attwood v Bovis Homes Ltd [2001]).

(4) Where a change in the use of the dominant land results in a change in the manner or extent of the use of the easement, the easement cannot be exercised so as to increase the burden on the servient tenement or substantially change how the easement is used – this principle derives from a Court of Appeal decision from the nineteenth century (Wimbledon and Putney Commons Conservators v Dixon [1875]), reformulated by the Court more recently in British Railways Board v Glass to mean that an easement would not extend to benefit the land where it had undergone a ‘change of identity’ or a ‘radical change in character’. So, for example, a prescriptive right of way enjoyed in respect of land with two attached houses continued to apply even where those houses were replaced with a three-storey block of flats, a bungalow, a house and eight garages. Residential use continuing, the court considered this to be an ‘evolution rather than mutation’. It was to some extent a matter of degree and while, for example, erecting a skyscraper might have constituted a radical change in character, that was not the present case (Giles v County Building Constructors (Hertford) Ltd [1971]).

In another case, a prescriptive right of way over a field in agricultural use could not be used in connection with the use of the field as a caravan and camping site, since ‘the use proposed would be an unjustifiable increase of the burden of the easement’ (RPC Holdings Ltd v Rogers [1953]).

However, the cases are by no means entirely consistent in their approach and even an apparently significant change may not be enough to extinguish the easement: the Court of Appeal in Ray v Fairway Motors (Barnstaple) Ltd [1968] held that a prescriptive right of support for a building continued to apply notwithstanding that the building had been extended so as almost to double the weight borne by the supporting wall, on the basis that the servient owners had failed to show that this had caused them any prejudice (ie there was no substantial additional restriction upon the use of, or activities on, the servient land).

The two questions before the Court of Appeal

While acknowledging problems of inconsistency in the previous case law, the examination of the authorities led the Court to the conclusion that the continuance of the easement at issue in the McAdams case turned on the response to two questions:

(1) did the redevelopment represent a ‘change of identity’ or a ‘radical change in character’ of the bakery site (rather than a mere change or intensification of its use); and

(2) would the use of the redeveloped site result in a substantial increase or altered burden on the servient land? Only if the answer to both questions was in the affirmative would the drainage right be suspended or lost.

Reaching a conclusion

On the first question, the Court of Appeal held that the judge at first instance had been entitled to reach the conclusion that there was a radical change in the character of the site, given the structural alterations and demolition affecting the buildings, coupled with the change of use from industrial to residential. The requirements in the first question were therefore met.

The second question proved more difficult. The Court held that the fact that the use of the drainage pipe for the redeveloped land could be shown to be substantially in excess of the original use at the time of grant did not of itself automatically defeat the continued exercise of the easement, nor could the question be answered merely by comparing the expected new use level against the maximum possible level under the previous use. What was required was a consideration of the potential (but realistic) intensities of use that may have occurred under each of the previous industrial use and the new residential use.

What is particularly instructive to note from the appeal report is that the evidence before the judge at first instance had concentrated on the likely extent of the actual use of the easement by the bakery at the time of grant, and had not examined more intensive potential use of the bakery and, as a result, of the easement, which could have resulted in a much greater flow of water through the drain. Had such evidence been raised and argued before the court, it was the Court of Appeal’s view that this might have shown the potential bakery use of the easement to have been in excess of that which might reasonably arise on the use of the houses, which could then have led the judge to an entirely different conclusion.

However, on the basis that the judge could only make his decision based on the evidence before him, and given that upon an examination of such evidence he reached the view that ‘there would be a substantial additional flow generated by the occupation of both houses… compared with any possible likely use of and consequent drainage flow from the bakery,’ the Court of Appeal held that the judge had properly applied the correct test. He had clearly been led to the conclusion that the increased flow of water due to the redevelopment did represent a substantial increase in the burden on the servient land.

The drainage easement could not therefore be exercised in relation to the new residential use of the site.

Facing the facts

Although in many areas of dispute case law provides clear pointers for the determination of subsequent cases, what clearly emerges from the examination in McAdams of the previous authorities, and from the approach taken by the Court of Appeal in determining that case, is that such easement questions will very much turn on the facts of any particular case. Even very similar facts may not necessarily lead to the the same result.

Indeed, in the leading judgment in McAdams the judge admitted to ‘considerable hesitation’ before upholding the first instance ruling that the second question should be answered in the affirmative, while another of the appellate judges remarked that the case was ‘a difficult one and very close to the line’.

Practical issues

Rights of access and drainage in relation to a development site can be crucial in ensuring the viability of properties to be constructed, and the developer must be satisfied that such rights are of a type and extent which are adequate for the intended use of the new properties. In the case of an express grant, the starting point will be the construction of the grant itself. How widely drawn is the right and are there any particular restrictions that may cause problems? The court will look at both the words and the physical extent of a right at the date of the grant. It is therefore important to make sure that the right extends to the anticipated use. If relying on a right arising by implication, prescription or under statute, it is important to make sure that the right covers the proposed uses (for example, that a right of way allows for vehicular, not just pedestrian, use).

The extent and scope of easements need to be examined carefully, as rights that are purported to be enjoyed by the property may not always deliver what they first appear to promise. © Property Law Journal