Planning and local government issues Rights of Way: changes in the law on burden Siân Davies

Where an easement is granted for the benefit of a property that is used for a particular purpose at the time of the grant, what are the principles governing the extent to which the easement can still be enjoyed by the owner of the property if the owner changes the use of the property and/ or constructs buildings on it?

Williams v James “Such a right cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen” (1867) LR 2 CP 577

Williams v James The right is limited to the use for which it might reasonably be inferred that the persons concerned could have contemplated.

Wimbledon & Putney Commons Conservators v Dixon “… you cannot from evidence of user of property in its original state infer a right to use it in whatever form in which, or for whatever purpose, that property may be changed...” [ ] All ER Rep 1218

Ray v Fairway Motors Test in that case was expressed to be “prejudice to the servient tenement”, with a requirement that such prejudice be established by the servient owner (1968) 20 P & CR 261 Note that the easement in question was a right of support

The McAdams case  Cottage on land adjoining the site of an old bakery which had a drainage system which passed beneath the cottage  The right to use that drainage system passed to the owner of the bakery on the sale of the building  The bakery eventually passed into the hands of a developer  Planning permission was obtained to replace the bakery with two large houses  The landowner refused to allow the developer to use the existing drainage system  Developer was forced to construct a new system  Developer argued that the landowner had acted unlawfully and issued proceedings to recover the cost of constructing the new system

The court's decision – previous authorities A servient landowner will not necessarily be entitled to object to an intensification of use if the use of the dominant land has not changed, but excessive use of an easement could render the dominant landowner liable in nuisance Radical changes in use or the erection of new buildings on land will not necessarily extinguish easements that benefit that land, if the change does not affect the nature or extent of the use of the easement.

Guidance for decision making Two questions - 1.Did the development of the dominant land represent a radical change in character or a change in the identity of the site, as opposed to a mere change in, or intensification of, use?

And Would the development result in a substantial increase or alteration in the burden borne by the servient land?

These are not alternatives. Both must be satisfied if an easement is to be extinguished or suspended

Practical Guidance In each case it would be necessary to examine: ● the easement in question; ● the position on the ground; ● the circumstances that existed at the date of the grant; and ● the nature and effect of the redevelopment

Relevant comparison was of the likely range of levels of water flow for a bakery and the likely flow for two houses, rather than the actual levels (although actual levels could be of relevance) Potential intensity was a matter that could (and should) be taken into account. That included the potential intensity from the bakery at the time the easement was granted (in contrast to its lower actual intensity)

The relevant date for the purposes of comparison was the date when the easement was granted

An easement persists so long as the condition does not alter radically The Williams v James test is further eroded by the additional requirement that there be a substantial increase or alteration in the burden borne by the servient land

“radical” “increase and “alteration” necessarily require a comparison between the situation as it was and that which exists now, or is proposed

Neuberger LJ “…each case will very much turn on its own facts…”. Para.55

Is there a level of intensification which (although not a change in use) can nevertheless be said to represent a radical change in character?

Possible that the test may differ depending on the type of easement, although the McAdams approach is said to apply to rights of way and passage of water Maybe not to rights of support?

The Future... How might the following cases be decided?

Case study #1 The dominant tenement is a housing development of large single- family houses with large garages and driveways, enjoying a right of way for vehicular access. A developer has obtained planning permission to demolish the houses and replace them with flats. It is proposed that sufficient parking should be provided for each flat to have two dedicated spaces. There will be triple the number of units when the flats are built, compared to the houses.

Case study #2 Would the criteria be met if the flats to be built were part of a development of “live-work” studio units with dedicated parking spaces for each unit and additional “client” parking spaces for the businesses to be operated there?

Case study #3 If the same development were to be demolished to make way for an out of town supermarket which would include residential units above the shop and parking for both residents and shoppers in an underground car park below, would that affect the position?

Case study # 4 If the supermarket were to be built without any residential units but with a hotel on the same site and sufficient parking for the supermarket and hotel?

Planning and local government issues