You may already be familiar with the concept of an easement, a legal right which vests in a piece of land (the 'dominant land') allowing the owner of that land to cross or otherwise use land owned by another party (the 'servient land'). They are often extremely valuable rights for the dominant land owner; perhaps providing the only means of access to their land or permitting them to connect to the water mains system by running pipework under neighbouring land.

Easements can arise in a multitude of ways. They can be expressly agreed or be implied under one of several legal principles. In this blog it is not our intention to explore the manner in which easements are created. Instead we shall briefly consider the rules addressing the scope of easements once they have been agreed between parties or established through implication.

Understandably, the owner of servient land would likely resist a dominant land owner benefitting from an entirely unrestricted right of way over his or her property. Therefore whether it be expressly agreed or impliedly created, the easement will usually be limited in scope. Issues will need to be resolved such as for what purpose the easement can be used, when it can be used and over which part of the servient land the right applies.

The question of an easement's scope often rears its head when the use of the dominant land is changed or a change is proposed. Market forces and commercial opportunities may encourage land owners to implement a new use for their land or sell it to a party who intends to do so. For instance, an owner of land under utilised for commercial purposes may capitalise on an opportunity to sell to a developer who plans to build residential properties on the site.

Where a change of use is in contemplation it is vital to consider whether the land in question benefits from an easement. If so, the owner (or proposed owner) of the land must ensure that any vital easements are not hindered by the planned change of use. But why would a change of use jeopardise a dominant land owner's ability to use an easement?

The principle of excessive use provides that use of an easement is not to overstep the right which was initially granted or acquired through implication. It is therefore imperative that the dominant land owner considers whether the proposed new use of the land could lead to excessive use of an easement. You can bet that the proprietor of the servient land will be considering this point, assessing whether their land will become increasingly burdened upon the change of use.

So what would be deemed excessive use following a change of use of the land? Factors such as the frequency of use, the nature of the use of the easement or the purpose for which the right is used may all be considered.

The Courts have wrangled with what would be deemed excessive use on several occasions but the guidance which is currently most influential emanates from the case of McAdams Homes Ltd v Robinson[1]. To paraphrase the Court of Appeal's decision, the dominant land owner's use of an easement may be deemed excessive after a change of use if:

1. There has been a radical change in the character of the dominant land or its identity, as opposed to a mere change or intensification of use.
2. The change has led to a substantial increase or alteration in the burden on the servient land.

If both of these conditions are met then the dominant land owner may run into serious difficulties. Fundamentally, excessive use could curtail their ability to use an easement, either indefinitely or until the change of use is no longer deemed radical or the burden on the servient land considered substantial. Commercially, the servient land owner may also seize the opportunity to suggest negotiation of new terms of the easement. However, this could lead to the dominant land owner paying a hefty premium for the privilege of an extended right.

As is often the case, the law governing excessive use has provided some seemingly contradictory decisions. It may therefore not always be clear cut as to whether a new use of land would be deemed excessive. However, the application of the McAdams Homes guidelines will often serve as a useful starting point in assessing whether the proposed new use of land could threaten the use of an existing easement.

It is imperative that owners of dominant land or prospective purchasers consider this issue before they implement a change of use or buy land for such purposes. They may otherwise find themselves unable to utilise vital rights of way or paying a high price for doing so in the future.