Identifying rights of way early on in the development process, and the manner by which they were created, is an important consideration for developers and landowners to reduce the risk of complications or obstacles later down the line.
A right of way can be created in a variety of ways, one of which is by prescription. Acquiring a prescriptive right is complex but in general terms one is generally deemed to have arisen where an owner of one piece of land exercises the right over another person’s land without force, without secrecy and without permission for an uninterrupted period of 20 years.
Where a prescriptive right has arisen, the use of the right must not exceed the nature for which it was granted or acquired. For example, if a prescriptive right of way was acquired for use as access to a railway station, if the railway station was redeveloped for a different use (such as residential housing), it is likely the prescriptive right would not extend to the new use. This would mean the right would end or be suspended for so long as the new use continues. This could have huge implications for a developer seeking to develop a parcel of land which benefits from use of an accessway by means of a prescriptive easement.
The extent of an easement was considered in detail by the Court of Appeal in McAdams Homes Ltd v Robinson [2004]. The court issued guidelines for easements created by implied grant and by prescription to assist in deciding whether an easement can continue, where the use of the land benefitting from the easement has changed and/or additional buildings are constructed.
The following two questions must be answered:
- Does the development of the benefitting land represent a radical change in its character or a change in its identity, rather than a change or intensification in its use?
- Will the use of the benefitting land, as redeveloped, result in a substantial increase or alteration in the burden on the land subject to the easement?
Where the answer to both questions is “yes”, the benefitting landowner’s right to enjoy the easement will end, or at least be suspended for so long as the radical change of character and substantial increase in burden are maintained.
As a practical example, in McAdams Homes Ltd v Robinson, the owner of a bakery who developed the site into residential use argued that its right to drainage (the drain running under adjoining land to connect the site to the public sewer) had been interfered with by the owner of the adjoining land subject to the easement when the adjoining land owner cut off the drainage. However, it was held that the redevelopment of the bakery to residential use was a “radical change” and therefore the owner no longer had the right to enjoy the easement. It was further held that the development to residential use represented a substantial increase in the burden of the land subject to the easement. This ultimately meant the owner lost the right to the easement and incurred further costs in arranging an alternative connection to the public sewer to enable the development to progress.
Similarly, in Mills v Silver [1991], it was noted that a prescriptive right of way is limited by the nature of the use for which it has arisen (differing from an easement by express grant), and building additional houses on the benefitting land would increase the burden on the land subject to the easement. The above cases make it clear that a developer looking to construct additional buildings (or otherwise increase the burden on the land subject to a prescriptive easement) would likely lose any prescriptive easement they enjoyed whilst the “new use” represented a “radical change” in character and/or an increase in the burden on the land subject to the easement.
The facts of each case need to be carefully considered but this does highlight that developers and landowners need to closely evaluate any benefitting rights they are looking to rely on and the manner by which they were created. Such a review should be carried out at an early stage to mitigate against delays to development further down the line. It may be that a variation of an existing right needs to be negotiated with a beneficiary or new easement acquired by an express grant.
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