Right of way – Access to farm – Lost modern grant or prescription – Claimant seeking declaration that right extending to access for new dwellings to be built on farm – Extent of right – Defendants claiming no right of way where radical change of use of dominant tenement – Whether defendants also required to show increased burden on servient tenement – Claim allowed
The claimant owned the freehold of a farmhouse and farm, access to which was gained by a lane that lay partly within the defendants’ ownership. The claimant had planning permission to develop the barns on his land for residential use. The defendants maintained that the claimant had no right to cross their part of the lane to access the barns once they were developed. They further claimed that the existing use of the lane to access a cottage on the claimant’s land, which was already let out for residential use, was without right.
The claimant sought a declaration that he had an unrestricted right of access over the lane. He claimed to have a full vehicular right of way, acquired by prescription or lost modern grant, by virtue of the continuous use of the lane for access to the farmhouse for residential use, and the farm for agricultural and commercial use, since at least 1962. The defendants contended that any rights so acquired did not enable the claimant to access the farm and cottage for residential use because either: (i) this would be a radical change of use from that permitted; or (ii) the levels of traffic would involve a substantial increase in the burden on the servient land. The claimant argued that an alternation in the character of the use to which the dominant tenement was put would not matter unless there was also an increased burden from an intensification of user. The defendants raised a further point as to whether rights could be acquired where the owner of the dominant land believed itself to be the owner of the servient land, alleging that the past owners of the claimant’s land had believed themselves to own the relevant part of the lane.
Held: The claim was allowed.
Mistaken belief as to the ownership of a servient tenement did not prevent a right by lost modern grant from arising. Where the owner of a dominant tenement enjoyed the right under a mistaken belief, that did not prevent it from acquiring a right by prescription by enjoying the easement “as of right”. In any event, the evidence did not support the proposition that the previous owners of the claimant’s land had believed themselves to own the relevant part of the lane.
In assessing whether the claimant’s right of way extended to residential use of the barns and cottage, the focus should be upon the effect that the change to the dominant tenement would have upon the burden imposed upon the servient tenement. An alteration to the use of the dominant tenement that changed its character did not prevent the use of a right of way if it had no effect whatseoever upon the servient tenement: McAdams Homes Ltd v Robinson [2004] EWCA Civ 214; [2004] 3 EGLR 93, Attwood v Bovis Homes Ltd [2000] 3 EGLR 139 and Wimbledon & Putney Commons Conservators v Dixon(1876) 1 ChD 362 considered. Accordingly, it was appropriate to apply a two-stage approach, asking whether: (i) there had been a radical change in the character of the dominant land, as opposed to a mere intensification of user; and (ii) the radical change would result in a substantial increase or alteration in the burden on the servient land.
On the evidence, there had been sufficient use of the lane to establish a right of way by prescription by use for the benefit of the farm, and that during that period the farm was used for mixed agricultural, commercial and residential purposes. The proposed development of the barns would involve a radical change in the character of the dominant tenement by transforming the use to purely residential. However, the quantum and nature of the use of the lane would not involve any substantial increase or alteration in the burden on the servient tenement. The claimant was entitled to a declaration that he and his successors in title could use the lane for full vehicular access to the farm, including residential use of the cottage and the dwellings to be constructed.
Sally Dobson, barrister
