McAdams Homes Ltd. v Robinson & Anor

An implied easement is not lost merely because the dominant land is redeveloped or its use intensifies. Where redevelopment changes the land’s use, the easement will be lost or suspended only if two requirements are satisfied: the redevelopment radically changes the character or identity of the dominant land, and it substantially increases or alters the burden on the servient land.

The second requirement concerns the real burden imposed, not merely the increased use of the easement. The court should compare realistic ranges of ordinary and reasonable use before and after redevelopment. The physical capacity of the relevant infrastructure is relevant but not decisive.

A bakery drained through a pipe beneath an adjoining cottage under an easement implied when the bakery site was conveyed in 1982. The bakery was later demolished and replaced by two four-bedroom houses. The cottage owners blocked the pipe, and the developer constructed alternative drainage at a cost of £6,633.26.

The developer claimed that blocking the pipe unlawfully interfered with the drainage easement. His Honour Judge Robin Barratt QC dismissed the claim in the Chichester County Court on 15 April 2003. The central issue on appeal was whether the implied easement could continue to serve the two houses following the change from industrial to residential use.

1. Appeal dismissed unanimously. The redevelopment radically changed the character of the dominant land and would substantially increase the burden of the drainage easement on the servient land. The judge was entitled to conclude that the easement could no longer be used for the two houses.
2. Per Neuberger LJ, an implied or prescriptive easement is not ordinarily limited by a mere increase, even a substantial increase, in the intensity of the existing use. Nor does a radical redevelopment affect an easement where it causes no material alteration in the nature or extent of the easement’s enjoyment.
3. Where redevelopment changes the use or buildings on the dominant land and alters the enjoyment of the easement, the easement will be lost or suspended only if two requirements are met. The redevelopment must represent a radical change in the character or identity of the dominant land, and it must cause a substantial increase or alteration in the burden on the servient land. Both questions are matters of fact and degree.
4. The change from one industrial building to two residential houses was a radical change which the trial judge was entitled to find. Expert evidence also permitted him to find that the houses would probably generate substantially more drainage than any likely bakery use.
5. The comparison was not confined to actual use when the easement arose. The court could consider realistic intensifications of the former use and should compare like with like by reference to likely ranges of use. The fact that the four-inch pipe could physically accommodate the increased flow did not determine whether the legal burden had substantially increased.
6. Sir Martin Nourse agreed that the judge had applied a permissible test and that the probable additional flow established a substantial increase in the burden. Peter Gibson LJ additionally regarded the apprehended use as excessive and the obstruction as justified. The appellant was ordered to pay the respondents’ costs.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously. The county court’s dismissal of the developer’s claim was upheld.
• Chichester County Court: His Honour Judge Robin Barratt QC dismissed the claim on 15 April 2003, holding that the drainage easement did not extend to use by the two houses.