The ability to rely on a right of way or other easement may be restricted if the use becomes excessive following redevelopment of land.

EASEMENTS AND INTENSIFICATION

An easement is a right attached to certain land (the “dominant land”) to cross or otherwise use someone else’s land (the “servient land”) for a specified purpose. Easements can either be express or implied.

The redevelopment of dominant land may result in the increased use of easements across servient land. “Intensification” will occur when the easement is used in excess of the original rights granted.

Take, for example, an owner of a plot of land with a right of way over a private road through adjoining property to the public highway. The owner has obtained planning permission to redevelop the plot for a housing development. However, will the purchasers of the houses be able to exercise the right of way?

THE RELEVANT TEST

Following case law, two questions must be considered:

  1. Would the development of the dominant land represent a radical change in character or a change in the identity of the site, as opposed to a mere change in, or intensification of, use?
  2. Would the development result in a substantial increase or alteration in the burden borne by the servient land?

If both of those questions are answered positively, then it is likely that the continued exercise of the right across the servient land will be deemed to be excessive.

If there is excessive use, it is not generally possible for the servient owner to claim that an easement has terminated. The usual remedy is an injunction to restrain or limit use to that permitted by the easement. The grant of an injunction during a redevelopment could have severe implications.

PRACTICAL ADVICE

Before acquiring land for development, a purchaser should carefully establish what easements exist in favour of the land and whether those easements will need to be relied on during or after construction. If so, the above tests should be applied and the risk of an injunction being obtained assessed.

The issue is easier to determine where there is an express easement granted by deed and the extent of the easement is clearly described in the deed itself. Where there is uncertainty or where an easement is prescriptive or implied, the purchaser should also establish the extent of the easement and gather as much evidence as possible from the seller as to how it has been exercised.