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An implied easement can arise under the rule of Wheeldon v Burrows. If part of land is sold off, then that plot will have quasi-easements over the retained land.
Those easements must be necessary for the reasonable enjoyment of the plot, and will be binding on the retained land provided they are being used and enjoyed at the time the plot is sold off.
The scope and extent of these implied easements will depend upon the use of the plot before it was sold off. But, the case law on what amounts to an excessive use, or a change in the character of that plot – the dominant land – is confused. That confusion has, however, been clarified by the CA, which has tried to lay down basic guidelines.
The starting point is Giles [1971], where there were two houses on the dominant land served by a right of way. It was held that the demolition of those two houses and the erection of a three-storey block of flats, with a bungalow and seven garages, did not involve a change in the character or the identity of the dominant land, and so it did not amount to an excessive use of the right of way.
That decision has to be contrasted with a recent CA case. There, two houses were built on the site of a derelict bakery and a dispute then arose over rights of drainage. The trial judge decided that, on the facts, the redevelopment of the bakery and its change to residential use was a ‘radical change’ and thus there would have been a ‘substantial increase’ in the use of the easement. Accordingly, it was an excessive use. In adopting this approach he had followed the approach of Neuberger J in Attwood [2001] who argued that, if there is ‘radical change’ in the use of the dominant land, then an easement can only continue if the change will not result in it being ‘greater in quantum or different in character’.
When the trial judge’s decision was appealed to the CA, it was Neuberger LJ who gave the lead judgment. In his view, there were two questions to be asked:
- Was the development of the dominant land a 'radical change', as opposed
to a mere change or intensification of use?
- Would it result in a 'substantial increase or alteration' in the burden
on the servient land?
If there was a ‘radical change’ and ‘substantial increase’ then the easement would end. The trial judge had therefore applied the correct legal test but, surprisingly, the CA decided that it was possible for him to have concluded that the replacement of the bakery with two houses came within these criteria. As such, his decision was upheld – but it has to be said that the outcome is somewhat surprising. Indeed, it simply emphasises how difficult these cases are to predict; so much depends on the attitude of the trial judge. There really was not much suggestion in this case that the disputed drain would be unable to hold flow from the two new houses and, whilst it was clearly a borderline case, the CA felt obliged to uphold the trial judge’s factual findings. But, at least we do have clear guidance from the CA that the key issues are the extent of any ‘radical change’ and whether that will then amount to a ‘substantial burden’. See excellent note on McAdams Homes v Robinson [2004] EWCA Civ 214 in [2004] 127 Property Law Journal 8.
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