Appellant possessing easement over respondents' property - appellant redeveloping land so as to change nature of its use - whether radical change in use of land extinguishing easement - appeal dismissed

McAdams Homes Ltd v Robinson and another: CA (Lords Justice Peter Gibson and Neuberger, and Sir Martin Nourse): 27 February 2004

The respondents' property adjoined the site of a former bakery, which had a drainage system that passed beneath the respondents' cottage.

The appellant acquired the freehold of the neighbouring land and obtained planning permission to replace the bakery with two large houses.

The respondents refused to allow the appellant to use the said drainage system and the appellant was forced to construct an alternative system.

The appellant claimed that the respondents had unlawfully interfered with its enjoyment of an easement of drainage and commenced proceedings to recover the cost of the new system.

The claim was dismissed at first instance.

The issue for the court was whether the easement of drainage, which had been granted by implication in the conveyance of the bakery site to the appellant's predecessor in title, was such that it benefited the two new houses.

Held: The appeal was dismissed.

Kate Selway (instructed by Hart Reade, Eastbourne) for the appellant; Jeffrey Widdup (instructed by The Owen Kenny Partnership, Chichester) for the respondent.

After the decision in the leading case of Williams v James (1867) LR 2 CP 577, the authorities on rights of way and easements fell into two categories, namely where: a change in the character of the dominant tenement had increased the burden on the servient tenement to the extent that the right or easement had been restrained or extinguished; and the nature of the use had not changed but had merely intensified, in which case the use continued.

The judge at first instance had clearly determined, with due regard to the authorities, that the redevelopment of the site had led to a radical change in its character.

He had been entitled to reach that conclusion.

The character had changed from purely industrial to purely residential, and had involved the destruction of one building and the erection of two new ones.

The judge had been justified in finding that, at the time of the original conveyance, the parties could not have contemplated that such a change would come about, and in concluding that the implied grant of easement had not been made in the contemplation of such change.