Shared easements – what constitutes excessive use of an easement?

When developing land, particularly where land has previously been used for agricultural purposes,  a key concern from a developer’s viewpoint is whether the existing rights benefitting the land, such as drainage and access, are sufficient for the future intended use of the land.  When those rights, termed easements, are shared with others,  there is the real potential for conflict.

Rights of way

The recent case of Merlin Real Estate Ltd v Balaam and another (2024) had all of these ingredients.  Mr Balaam, a farmer, owned land that was subject to a right of way granted over a track in 1982, when it was used to access both farmland and six houses.  Over the years, the number of houses on the land with the benefit of the easement increased to 27, and the developer Merlin applied for planning permission to build 10 more.

Mr Balaam objected to the construction of these further 10 houses.  Mr Balaam felt that that the previous development of the land had caused real problems for him using the access track for his farming purposes, and that further development would make things worse and amounted to excessive use of the right to use the track.

But what counts as excessive use in this context?   This case set the bar high.  The use has to be so intensive as to amount to an unreasonable interference with the rights of the landowner over whose land the right is being exercised.   However, as Mr Balaam discovered, it is not enough to simply claim that use has amounted to unreasonable interference, you need to be able to provide clear evidence of this. Unfortunately for him, he was unable to provide specific evidence demonstrating unreasonable interference and as such, the judge ruled in favour of the developer.

Drainage

The Merlin case concerned access, but another area that can often prove contentious is shared drainage.  In 2004, the Court of Appeal in McAdams Homes Ltd v Robinson,  emphasised the importance of strong supporting evidence.

This matter centred around a shared sewage pipe, originally used by a cottage and an adjoining bakery. The issue arose when the bakery was sold and subsequently demolished, and replaced by two houses. The owner of the original cottage claimed that the use of the drainage pipe by the newly built two houses amounted to an excessive use of the drainage easement.

The cottage owner was able to present evidence, which showed that the development of the two houses represented a ‘radical change in the character’ of the bakery site and resulted in a substantial increase in the burden on the drainage pipe. A key evidential factor was a comparison between the water flow into the drainage pipe when the property was used as a bakery, and when used as two dwellings.   This comparison was one of the main factors that resulted in the judge finding in favour of the cottage owner.

As the above two cases show, the success or otherwise of claims that use of an easement is excessive hangs on the strength of the supporting evidence.  A mere change of use of the land with the benefit of the easement will not usually, in itself, be sufficient to demonstrate excessive use.

If you have any questions about the use of easements, please get in touch.