Land

Easement of right to drain water - change of use of dominant tenement not increasing burden on servient tenement - change of use not preventing exercise of easementAttwood v Bovis Homes Ltd: ChD (Neuberger J): 10 April 2000

The defendant was the owner of a piece of land which had always been used for agricultural purposes.

It had a right to drain surface water from their land through the claimants' farm.The defendant then started to construct a housing development on land.

The claimants contended that the easement of drainage, which had been acquired by prescription, was no longer exercisable since the defendant's land had undergone a radical alteration, even though there was no material increase in the volume of water discharged through the claimants' land.The claimants sought, among other things, a declaration that the defendant was not entitled to use the easement.Rodney Stewart Smith (instructed by Kingsley Smith & Co, Chatham) for the claimants.

Martin Rodger (instructed by Masons) for the defendant.Held, giving judgment for the defendant, that in right of way cases, if there were a radical change of use of the dominant tenement the court would generally prevent the easement from being exercised; that the easement in the instant case was comparable to an easement of support where a change of use of the dominant tenement did not result in the loss of the right where there was no material increase in the burden on the servient tenement; that the change in the use of the defendant's land would not result in the use of the right being greater; and that, accordingly, the easement remained exercisable.