Can a developer rely on an existing easement of a single-track road to build new houses and give the homeowner access rights?
We frequently see issues about the extent of a developer’s right to intensify the use of an existing right of way. These problems are most common where a piece of land is being developed intensively, which imposes a strain on the means of access to it and the servicing going forward.
Take the example of a developer who wants to build a number of houses on a plot of agricultural land to which there is a single-track access and a drain, which the developer, in each case, has a right to share.
Access and drainage rights
The landowner who owns the access and shares the drain objects to the developer’s plans on the basis that they will no longer have room to manoeuvre their tractors up and down the track and that there is insufficient drainage capacity to serve both the farm and the intended new houses.
This very problem was explored and resolved in favour of the developer in April 2024 in the case of Merlin Real Estate Limited v Balaam & Other [2024] PLSCS 88.
In the Merlin case, the access track was several hundred metres long. In 1982, an express right of way over the track, in common with all other persons from time to time having the same right, was granted when the route served farmland and six dwellings.
There has been gradual development over the years, and by the time of the litigation, the number of dwellings had increased to 27, with the developer planning a further 10.
A dispute arose between the developer and the farmer, and the developer issued proceedings for a declaration from the court that they had the right to complete their development. The farmer defended those proceedings, arguing that there had already been an interference with their shared rights of access and that the construction of even more houses would only worsen the problem.
Legally speaking, the test of whether there is an actionable excessive use of an easement is fairly simplistic. The question that needs to be answered is whether the use is so intensive as to amount to an unreasonable interference with the landowner’s rights?
It is imperative to produce compelling evidence to convince the court that there is an unreasonable interference because, as became clear in the Merlin case, when the witnesses were cross-examined, they could not give any evidence to show that there would be a sustained level of actual interference. No doubt this came as a surprise to the landowners because, on the face of it, their witness statements looked very persuasive and did make out a case that there had been unreasonable interference.
In relation to the drainage issue, namely the right to drain water from the land and a right for a water supply, this is another issue that can cause issues between landowners and developers. In this case, the development will require a greater use of the drainage or supply to the possible detriment of the other party.
Water and drainage rights
The court examined this issue in a 2004 Court of Appeal case, McAdams Homes Limited v Robinson [2004] 3 EGLL 93.
In that case, a cottage owner had built a bakery on his adjoining land. Effluent from both buildings connected to the public sewer through a pipe serving the cottage. When the bakery was sold, an implied right of drainage was given to the owner, which caused no issues until the successor owner demolished it and built two houses in its place. The cottage owner then complained that there would be increased use of the drainage pipe and blocked it up.
The developer then sued the cottage owner for the cost of constructing a new pipe, but the cottage owner established that the use of the easement following the development of the bakery was, in fact, excessive. The court examined the relevant law and authorities and concluded that you have to answer two questions.
- Firstly, whether the development represents a radical change in the character or a change in the identity of the site as opposed to a mere change or intensification in the use of the site?
- Secondly, whether the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land? It is only if both answers to these questions is yes, that the easement could be lost or suspended.
In the McAdams case, the judge concluded that both of these tests had been satisfied.
The fact that the bakery could have intensified its use of the pipe to a similar extent to use by two houses did not prevent a finding that there had been a substantial increase in the burden. The court did say that if there had been evidence that the number of employees could have increased in the bakery with the result that the consequent possible flow of water would exceed that coming from two houses, the judge could instead have found no substantial increase in the burden.
However, in this case, the judge was entitled to conclude that there was a substantial increase in the evidence before him, which was limited to the likely extent of actual use by the bakery before development. The feasibility of the bakery employing more people who might use the facilities was not investigated, nor was evidence provided to the court.
