Riparian rights and prescriptive rights of drainage
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; [2004] PLSCS 56. 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.
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; [2004] PLSCS 56. 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.
The litigation in Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch); [2021] PLSCS 4 concerned the redevelopment of land in Macclesfield by the refurbishment of an existing property, and the construction of nine new dwellings. Unfortunately, there was no suitable foul sewer in the vicinity to accept sewage from the development. The developer claimed to have the benefit of riparian rights, enabling it to discharge surface water or treated sewage effluent into a pipe that discharged onto land belonging to the Canal and River Trust. Alternatively, the developer laid claim to a prescriptive right to use the pipe.
Having rejected the developer’s claim to riparian rights on the ground that there was insufficient evidence of there ever having been a natural watercourse that had been culverted, the judge turned to the question of whether an easement had arisen as a result of the operation of the doctrine of lost modern grant. Unfortunately for the developer, there was no evidence that significant amounts of water had ever drained from the site through the pipe.
In addition, the judge doubted whether any such easement could be said to accommodate the whole of the site. Putting the developer’s case at its very highest, the easement claimed would have accommodated the immediate curtilage of the existing house and its septic tank, and surface water in the immediate vicinity of the pipe, but no more.
If this were wrong, the judge rejected the Canal and River Trust’s argument that the user proposed would be impermissibly excessive. He accepted that what was proposed – an estate development covering the whole of the site – involved a radical change in the character and identity of the site. But the evidence did not, in his opinion, demonstrate that there would be a substantial increase or alteration in the burden on the servient land in respect of either the quality or quantity of the discharge from the pipe. Consequently, the proposed user would not have been excessive.
Allyson Colby is a property law consultant
