The rules that apply to changes in the intensity and type of use of a prescriptive easement were set out in McAdams Homes Ltd v Robinson [2004] EWCA Civ 214; [2004] 3 EGLR 93. The decision established that, where dominant land was used for a particular purpose when an easement was created, an increase in the intensity of that use is not, of itself, objectionable.
However, the law requires dominant landowners to exercise their rights reasonably and without unduly interfering with the servient owner’s enjoyment of its land. Consequently, excessive use of an easement will render the dominant landowner liable in nuisance.
McAdams also established that where there is a change in use or new buildings are erected on dominant land without affecting the nature or extent of use of an easement, the change is not, of itself, objectionable. But, if a development on dominant land results in a radical change in its character or identity, and substantially alters or increases the burden on servient land, the prescriptive easement will be suspended while the radical change in character and substantial increase in burden are maintained, or may even be lost.
Stanning v Baldwin [2019] EWHC 1350 (Ch) concerned the proposed redevelopment of a house in Gerrards Cross, which adjoined land that was registered as a common under the Commons Registration Act 1965. The owner of the house had obtained planning permission to demolish and replace it with four terraced houses and underground parking for nine cars. But the right of way over the unadopted and unmade up track that served the property had arisen by prescription.
The owners of the track were the lords of the Manor of Chalfont St Peter and the freehold owners of the common. They conceded that the proposed new use would not involve a radical change in the character or identity of the property (which prevented them from relying on the two-stage test laid down in McAdams), but complained that the development would substantially increase the volume of traffic over the track, which would have an impact on pedestrians and might damage the track.
The judge noted that the Court of Appeal in McAdams had suggested that an increase in the weight of a supported building, which was too great to allow the right of support to continue, or increased use of a drain, causing it to overflow, would be “self-evidently excessive”. Consequently, the judge took the view that it would be legitimate to apply this test too.
There were two separate issues: would the prescriptive easement accommodate the use of the right of way for construction vehicles – and, once the development was finished, access to and egress from four dwellings? The judge noted that the track had been used for construction projects over the years and ruled that there was no evidence to suggest that the construction phase would self-evidently involve a public nuisance or excessive use, or that the construction vehicles would be bound to damage the surface of the track. And, although the construction of four houses in place of the existing one was likely to increase the use of the track, there was no basis for concluding that this would self-evidently involve excessive user.
Allyson Colby is a property law consultant
