Prescription – Defendant acquiring agricultural land enjoying drainage rights over claimants’ agricultural land – Defendant obtaining planning permission for residential development – Permission conditional on defendant taking steps to avoid greater volume of discharge – Claimants contending that easement extinguished by radical change in character of dominant tenement – Whether such contention correct where no greater burden to be borne by servient tenement – Whether rule relied on by claimants solely applicable to rights of way acquired by long use
The claimants’ property, Wall End Farm, on the Isle of Sheppey, was crossed by a number of ditches and watercourses that historically served to drain a neighbouring agricultural property, Thistle Hill. In February 1998 Thistle Hill was acquired by the defendant (Bovis). Bovis had earlier obtained outline planning permission for a development that would include the construction on Thistle Hill of 1,000 houses and a shopping centre. In expectation of the development greatly reducing the area capable of soaking up rainwater, a condition had been attached to the permission (the drainage condition) requiring Bovis to install a drainage system to ensure that the volume of water received by Wall End Farm would not be significantly increased.
The claimants brought proceedings disputing Bovis’ right to exercise rights of drainage over their farm. They conceded that Bovis had acquired a prescriptive right of drainage, but contended that, notwithstanding the safeguard afforded by the drainage condition, the development would bring about so radical a change in the character of the dominant tenement as to render that right incapable of lawful exercise. To justify their contention that such change sufficed, without more, to extinguish the easement (the strict rule), the claimants relied, inter alia, on Williams v James (1867) LR 2 CP 577, Wimbledon & Putney Commons Conservators v Dixon (1875) 1 ChD 362, British Railways Board v Glass [1965] Ch 538 and Loder v Gaden (1999) 78 P&CR 223.
Bovis argued that the court should apply a flexible rule, whereby a radical change did not extinguish an easement automatically, but required the dominant owner to establish that the burden on the servient tenement had not been significantly increased.
Held: The drainage right continued to be exercisable.
The right in issue had been acquired by prescription and no assistance could therefore be derived from cases dealing with express grants. All but one of the prescriptive cases relied upon by the claimants concerned rights of way, where the strict rule was arguably defensible on the grounds that: (i) the additional burden, if any, to be borne by the servient tenement could not be ascertained in advance; and (ii) the character of the dominant tenement would be part of the supposed content of the fictional grant: see per Harman LJ in British Railways. Neither consideration applied to the present case; nor could the claimant rely on Cargill v Gotts [1981] 1 WLR 441, which concerned the abstraction of water from the servient tenement.
Rights of way apart, easements in general were subject to the flexible rule advanced by the defendant, where change in the character of the dominant tenement was only relevant in so far as it touched upon the fundamental principle that the burden on the servient tenement should not be substantially increased: see Lloyds Bank Ltd v Dalton [1942] Ch 466 and Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P&CR 261 (both concerning easements of support). Whatever their reasons for bringing the action, the claimants had no cause to complain of any increase or variation in the burden to which their land was subject.
Rodney Stewart-Smith (instructed by Kingsley Smith & Co, of Chatham) appeared for the claimants; Martin Rodger (instructed by Masons) appeared for the defendant.
Alan Cooklin, barrister
