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As we have seen from the above entry, it needs a ‘radical change’ of use, plus a ‘substantial increase’ in the burden, before an easement will be lost. It is important to realise that if there is no change of use then it seems that mere intensification in the use of the easement will not lead to its loss or suspension.
It is only if the extra use becomes so intensive as to amount to the imposition of an additional burden on the servient land that it will be lost. Conversely, developers will get comfort from the CA’s clear statement that a change of use – even a ‘radical change’ – will not of itself mean the inevitable loss of an easement (plus there would also have to be a ‘substantial increase or alteration’ of the burden). Accordingly, mere change of use, by itself, should not be a problem. [2004] 127 Property Law Journal 8.
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May 2004 |
