McAdams Homes Ltd. v Robinson & Anor

This is an appeal brought by McAdams Homes Ltd (“McAdams”), pursuant to permission granted by Lord Justice Jonathan Parker, against a decision of His Honour Judge Robin Barratt QC, in the Chichester County Court on 15 April 2003. The facts of the case are straightforward, and, while they give rise to an issue which is simple to explain, it is one which is rather more difficult to resolve. As is often the case with issues involving easements, the difficulty arises, at least to a significant extent, because of the somewhat confused state of the authorities.

In 1949, Stanley Holt was the freehold owner of a cottage and garden called Whyte Cottage, Lake Lane, Barnham, Bognor Regis, West Sussex (“the cottage”), together with adjoining land also fronting Lake Lane. In that year, he obtained planning permission to construct a bakery on the adjoining land (“the site”). When implementing that planning permission, the foul and surface drainage systems serving the bakery were constructed so as to connect to the public sewer, which ran to the rear of the properties fronting Lake Lane, through the drainage system serving the cottage. In other words, the foul and surface drainage left the site through a drain (“the drain”) which was connected into the pipe serving the cottage (“the Pipe”) which ran from under the cottage into the public sewer.

Stanley Holt died in 1972, and the freehold of the cottage and the site passed to Roy Holt. On 8^th April 1982, Roy Holt sold the freehold of the site to a Mr Richards, who operated the bakery until about 1986. Thereafter, the bakery remained unoccupied, and appears to have become derelict. The freehold of the site was vested in a Mr Langridge in or about 2000.

Roy Holt sold the cottage to a Mr & Mrs Sutton on 30^th April 1984. On 27^th August 1997, Mr & Mrs Sutton sold the cottage to the defendants, Colin and Ashley Robinson (“the Robinsons”).

On 1^st September 2000, the local planning authority, Arun District Council (“the Council”), granted Mr Langridge outline planning permission for the erection of two detached four-bedroomed houses on the site of the bakery. Mr Langridge then sold the site to McAdams, a residential property development company, on 14^th December 2000. During 2001, McAdams demolished the bakery and erected in its place two houses (“the houses”), each of which was subsequently sold for just over £230,000.

McAdams intended the two houses to enjoy substantially the same system as had been used by the bakery for discharging foul and surface water, namely through the drain on the bakery site, through the Pipe under the garden of the cottage, and thence into the public sewer. However, in or about August 2001, while McAdams were constructing the two houses, the Robinsons blocked the Pipe. After some argument, McAdams arranged for the construction of a new means of drainage from the two houses into the sewer, at a cost, as found by the judge, of £6,633.26.

In February 2002, McAdams issued proceedings for recovery of this money, together with interest (and certain other sums which were not ultimately pursued). The claim was based on the contention that, by blocking the Pipe, the Robinsons had unlawfully interfered with the easement of drainage enjoyed by McAdams, as the owner of the site. Judge Barratt dismissed the claim and McAdams now appeal that decision.

It is common ground between the parties that the conveyance of the site in April 1982 (“the 1982 conveyance”) included, by implication, a right in favour of the purchaser to discharge foul and surface water from the bakery, through the drain under the site and under the cottage garden, into the Pipe under the cottage garden, and then through the Pipe into the public sewer. This appears to me to be correct in light of the principle established in Wheeldon -v- Burrows (1879) 12 Ch D 31 at 49, where Thesiger LJ said in a famous passage:

“[O]n the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”

Drainage is within the category of “continuous and apparent easements”: see Pyer -v- Carter (1857) 1 H&N 916 and Watts -v- Kelson (1870) 6 Ch App 166.

Before turning to the central issue in this case, it is right to get two points out of the way. First, owing in part to the high water table in the area, and in part to the hydraulic pressure in the public sewer, backflow of sewage sometimes occurred in the public sewer during times of high rainfall. This has caused sewage to be discharged back up the Pipe into the garden of the cottage. It appears pretty clear from the evidence that it was the Robinsons’ concern about this problem which was at least a major reason for their decision to block the Pipe. This problem has now largely been dealt with by the Council, albeit that the judge stated that it “may not have been fully alleviated”.

One can easily understand the Robinsons’ distress at sewage backing up through the Pipe into their garden, and one can fully sympathise with their resulting wish to minimise the amount of effluent, and in particular foul drainage, passing through the Pipe. However, it does not seem to me that this problem can, as a matter of law, serve to justify the Robinsons’ blocking the Pipe. Indeed, I did not understand Mr Widdup, who appeared for the Robinsons, to argue otherwise.

If a public sewerage system, into which effluent from a private drain discharges, is in a defective condition such that, on occasion, it backs up, that cannot of itself render unlawful an otherwise lawful use of the drain by a third party (unless, of course, the terms upon which the third party is permitted to use the drain happened so to provide). If the owner of a drain expressly or impliedly grants an easement to another party to use the drain for certain purposes, the easement cannot be determined, nor the purposes cut down or modified, merely because of some subsequent defect in the public sewerage system into which the drain discharges. The position, would, of course, be very different if, in a case where the issue was whether the other party was making excessive use of the easement, it was established that his alleged excessive use of the drain was causing, or even substantially contributing to, the backing up. However, no such suggestion has been raised by the Robinsons so far as the proposed use of the Pipe in connection with the use of the two houses.

The second point it is right to mention arises from Ms Selway’s contention on behalf of McAdams, that the blocking of the drain was, on any view, wrong, because it occurred before either of the two houses was occupied, and, indeed, before either of the two houses was built. In the first place, it may well be that, if the use of the Pipe for discharging water from the two houses was not a permissible use, then the easement was lost when the bakery was demolished. After all, it is clear that there was no intention to rebuild the bakery; it might wellhave been different had the bakery been demolished with a view to a new bakery being erected. In this connection see the discussion in paragraph 18-187 of Megarry & Wade, The Law of Real Property, 6^th Edition.

Quite apart from this, it appears to me that, if the enjoyment of the Pipe for the benefit of the two houses would have been impermissible, it cannot be said that the cost of constructing the new drain was in any way attributable to the blocking of the Pipe by the Robinsons. If the use of the Pipe by the two houses would not have been permissible, then it would have been necessary for McAdams to have constructed the new drain whether or not the Pipe had been blocked off. In those circumstances, even if the Robinsons had not blocked the Pipe, McAdams would still have had to incur the expense of constructing the new drain.

That, then, brings me to the issue which the judge below had to resolve in order to determine this appeal. That issue was as follows. Was the easement of drainage, granted by implication by the 1982 conveyance, such that it could be used for the benefit of the two detached four-bedroomed houses erected in place of the bakery in 2001?

The judge gave a negative answer to this question. As I read his judgment, there were two reasons for this conclusion. His first reason was expressed in these terms:

“It was not in the contemplation of the parties [to the 1982 conveyance] that the bakery would cease to be used as a manufactory. Nor either would it have been in the reasonable contemplation of the parties at that time that it would have been reasonable to discharge raw sewage onto Whyte Cottage.”

Secondly, he said that:

“The redevelopment of the bakery and its subsequent use for residential use is a completely different type of use. It is a radical change. It is a change from a factory to two houses”.

This second reason was said to be supported by the fact that:

“There is the clearest jointly instructed expert evidence that in all probability there would be a substantial additional flow generated by the occupation of both houses once occupied. This additional flow is to be compared with any possible likely use of and consequent drainage flow from the bakery.”

The jointly instructed expert, Mr John Haiste, an independent consulting engineer, had carried out some calculations as to the likely flow of water from the bakery. On the basis that a bakery was in the category “hospital, school, restaurant, hotel (frequent use)”, which, he suspected, would lead to an overestimation, he concluded that the bakery would discharge 900 or 550 litres a day, depending on whether ten or five people were working there. In that connection, on the basis of admittedly slender evidence, the judge concluded that at no time were there as many as ten people working at the bakery. He accepted the evidence of a witness who acceptedthat there were “between two and six people” working at the bakery. As far as the two houses are concerned, Mr Haiste estimated that, with two occupiers per house, the flow would be between 600 and 1,200 litres a day, and with four occupiers per house, the flow would be between 1,200 and 2,400 litres a day.

The only other fact that it is relevant to mention is the size of the Pipe. It has a diameter of some four inches. In that connection, there was unchallenged evidence before the judge that paragraph 2-30 of the Building Regulations 2002 stated that:

“Sewers (ie a drain serving more than one property) should normally have a minimum diameter of 100mm when serving no more than 10 dwellings. Sewers serving more than 10 dwellings should normally have a minimum diameter of 150mm.”

Accordingly, at least on the face of it, the Pipe would be easily adequate to accommodate drainage from the cottage and the two houses.

The question that arises in the present case can be expressed in the following more general way. Where an easement is granted by implication on the sale of a property, which is used for a particular purpose at the time of the conveyance, what are the principles governing the extent to which the easement can still be enjoyed by the owner of that property if he changes its use and/or constructs buildings on it? In order to answer that question, assistance can be found from a number of authorities cited to us.

Neither party challenged the correctness of these authorities, although many of them are concerned with easements other than drainage. Some circumspection must be engaged when applying the reasoning in those authorities, both generally and in relation to this case. One is here concerned with an implied grant. Accordingly much may depend on the particular facts of the case. Further, the answer may depend on the nature of easement, as not all points applicable to one type of easement will necessarily be applicable to another. In this connection, I would refer to what was said, perhaps somewhat hyperbolically, by Willmer LJ in Ray -v- Fairway Motors (Barnstaple) Limited (1968) 20 P&CR 261 at 267: “It seems to me that there is all the difference in the world between an easement of light and an easement of support”.

I should also mention that many of the cases to which we have been referred were concerned with easements arising by prescription, as opposed to easements arising by implication, as in this case. In my judgment, at least in the great majority of cases, there should be little difference in the principles applicable to the two types of case. An easement arising by prescription involves a fictional lost grant, as pointed out by Harman LJ in British Railways Board -v- Glass [1965] Ch 538 at 562E, whereas an easement arising under the rule in Wheeldon -v- Burrows arises by implied grant. In each type of case, the easement does not come into existence by an express agreement, whose effect can then be construed by the court. It arises out of a set of facts which, pursuant to principles developed by judges (albeit that prescription has in part been codified by the ill-drafted Prescription Act 1832), result in a deemed grant of an easement. In each case the existence, nature and extent of the deemed grant must depend on the circumstances existing at the date of the grant.

I now turn to consider the cases which have been cited to us, and the principles which can be derived from them.

First, where the dominant land (ie, the property benefiting from the easement) is used for a particular purpose at the time an easement is created, an increase, even if substantial, in the intensity of that use, resulting in a concomitant increase in the use of the easement, cannot of itself be objected to by the servient owner (ie, the owner of the property subject to the easement). That proposition is supported by the judgments of Harman and Davies LJJ in Glass at 562F-G and 568A-B respectively, in relation to a prescriptive right of way for the benefit of land used as a caravan site. At 562F-G Harman LJ said this:

“A right to use a way for this purpose or that has never been to my knowledge limited to a right to use the way so many times a day or for such and such a number of vehicles so long as the dominant tenement does not change its identity. If there be a radical change in the character of the dominant tenement, then the prescriptive right will not extend to it in that condition. The obvious example is the change of a small dwelling house to a large hotel, but there has been no change of that character according to the facts found in this case.”

Similarly in Cargill -v- Gotts [1981] 1 WLR 441, the dominant owner had obtained by prescription a right to extract water from a pond on the servient land for the purpose of watering his animals on the dominant land. While remaining agricultural in nature, the use of the dominant land subsequently changed to arable, and there was a resultant substantial increase in the water taken from the servient pond, because the water was now used for crop-spraying. This was held to be a permissible enjoyment of the easement. Templeman LJ (effectively expressing the view of the Court of Appeal on this point, although he dissented on a different point) said this at 447G-H:

“Water used for crop spraying is just as much used for agricultural purposes as water used for bullocks and the fact that more water may be required for crop spraying than for watering bullocks is not sufficient to destroy or alter the nature of the right asserted or the easement acquired.”

Just before this, Templeman LJ observed, at 447E:

“In my judgment, it is a mistake to concentrate on gallonage and detailed user. When Grove Farm, in or before 1927, took 100 gallons in the millpond to water 100 bullocks, Grove Farm did not begin to acquire an easement to take 100 gallons to water 100 bullocks, but began to assert a right, which after 20 years, ripened into an easement to take water from the millpond for the benefit of Grove Farm for all purposes according to the ordinary and reasonable use to which Grove Farm might be applied at the time when the right was and continued to be asserted.”

Secondly, excessive use of an easement by the dominant land will render the dominant owner liable in nuisance. The law is stated thus, in the present, 17^th, edition of Gale on Easements at paragraph 6-90:

“If the dominant owner makes excessive use of the right of drainage by discharging more matter than the system is designed to cope with, thus causing flooding of the servient land, he will be liable in nuisance. What amounts to excessive use depends on the grant construed in the light of the circumstances surrounding its creation which may include the capacity of an existing system or the size of the buildings on the dominant land at the date of grant.”

In most cases where the extent, and even the nature, of the grant is in dispute, the question of excessive use will be unhelpful, because one can only determine whether the use is excessive once one has decided the extent of the grant. However, there will obviously be cases where the user has been self-evidently excessive. An example, in relation to drainage, would be a case where, after the acquisition of the easement, the dominant owner has substantially intensified, or altered, the use of his property with the result that the liquid being discharged from the land is increased to such an extent that it causes the drain to overflow. Another example might be that given by Harman LJ in the passage I have quoted from Glass.

Thirdly, where there is a change in the use of, or the erection of new buildings on, the dominant land, without having any effect on the nature or extent of the use of the easement, the change, however, radical, will not affect the right of the dominant owner to use the easement. In Lutrell’s Case (1601) 4 Co Rep 86a, a prescriptive right to a watercourse was not lost by the dominant owner demolishing two ancient fulling mills and erecting in their place two new corn grinding mills. The Exchequer Chamber held at 87a that the dominant owner “might alter the mill into what nature of a mill he pleased, provided always that no prejudice should thereby arise, either by diverting or stopping of the water, as it was before …”.

In Watts, property containing cattle sheds was sold, together with an implied right to the supply of water along pipes leading from a tank on the vendor’s land. The purchaser demolished the cattle sheds and erected cottages in their place. In those circumstances, the Court of Appeal said at (1870) 6 Ch App 175:

“[W]hat passed to [the purchaser] was a right to have the water flow in the accustomed manner through the [servient] premises to his premises, and … when it arrived at his premises he could do what he liked with it, and … he would not lose his right to the water by any alteration he might make in his premises.”

In those two cases, the nature of the easement was such that it was very unlikely that an alteration in the dominant land could substantially alter or increase the enjoyment of the easement or cause any prejudice to the servient owner. Atwood -v- Bovis Homes Limited [2001] Ch 371 involved rather different facts, although it can fairly be said to be to the same effect. In that case, the dominant land, which had at all times been used for agricultural purposes, had a prescriptive right to drain surface water over neighbouring land. Notwithstanding that the proposed change in the dominant land, namely a development to a housing estate, would be very substantial, I held that the right could still be enjoyed and would not be lost. This was because the dominant owner, through the medium of a water drainage scheme, was going to ensure that the quantum of surface water passing over the neighbouring land would remain wholly unaffected by this radical development.

The decision and reasoning of the Court of Common Pleas in Harvey -v- Walton (1873) LR 8 CP 162 appears to have endorsed the same approach. A right of eavesdropping was not lost when the dominant owner demolished the building on his land and replaced it with another, taller, building. Giving the judgment of the Court, Grove J said:

“We are of opinion that the question here … is whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement … [T]here must be an additional or different servitude and the change must be material either in the nature or in the quantum of the servitude imposed.”

These cases appear to me to rest on the proposition that the servient owner is ultimately more concerned with an alteration in the nature or extent of the enjoyment of the easement over his land, rather than with a change in the nature or extent of the use of the dominant land. The use of the dominant land will determine the character and extent of the enjoyment of the easement, and a change in the use may obviously lead to an alteration in that enjoyment. However, where the change in the use of the dominant land does not lead to such an alteration, there is no basis for concluding that the easement cannot continue to be enjoyed in connection with the dominant land.

Fourthly, there are a number of cases which bear on the converse question, namely the effect of a change in the use of the dominant land which results, or may result, in an alteration in the manner or extent of the use of the easement. In Williams -v- James (1867) LR 2 CP 577, Bovill CJ said at 580 that a right of way obtained by prescription for the purpose of carting hay to field “cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen”. This approach was adopted in Wimbledon and Putney Commons Conservators -v- Dixon (1875) 1 Ch D 362 where a prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage.

The Court of Appeal held that the dominant owner could not use the way for carting materials for the purpose of effecting a residential development on his land. At 368, James LJ said:

“We have then to consider whether the character of the [dominant] property can be so changed as substantially to increase or alter the burden upon the servient tenement. I was strongly of opinion that it was the settled law of this country that no such change in the character of a dominant tenement could be made as would increase the burden on the servient tenement.”

Having considered the argument, and authorities, including Williams, James LJ concluded that his initial view was correct. He went on to say:

“[I]f a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built.”

Mellish LJ, expressed himself in similar terms. At 370, he asked:

“Assuming that it is made out that [the dominant owner] and his tenants have used this way, not exclusively for agricultural purposes, but for all purposes for which they wanted it, in the state in which the land was at the time of the supposed grant - at the time when the way first began - and assuming that there has been no material alteration in the premises since that time, does that entitle [the dominant owner] to alter substantially and increase the burden on the servient tenement by building any number of houses he pleases on this property and giving to the persons who inhabit those houses the right to use the way for all purposes connected with the houses?”

Like James LJ, Mellish LJ indicated that his initial firm view was that the answer was in the negative, and that, after considering the authorities, he remained of that view. Baggallay JA said at 374:

[Y]ou must neither increase the burden on the servient tenement nor substantially change the nature of the user.”

The test applied in that case was therefore expressed in virtually identical terms by three of the four members of the Court of Appeal, but the only guidance given as to what constitutes a “substantial” increase or alteration, was by reference to the facts of that particular case. It seems to me that the determination of such a question in each case must depend upon the facts of the case, and must inevitably involve a question of degree. Further, in none of the judgments in Wimbledon is there any indication as to how one assesses the increase in the “burden”.

We were referred to two first instance decisions where the reasoning in Wimbledon was applied, namely Milner’s Safe Company Limited -v- Great Northern & City Railway Company [1907] 1 Ch 208 and RPC Holdings Limited -v- Rogers [1953] 1 All ER 1029. In Milner’s, a right of way had been impliedly granted in respect of a number of terraced houses over a passage running to the back of those houses, which were used at the time of grant for residential and warehouse use. Kekewich J held that the passage could not be used for the benefit of an underground railway station which had been constructed by the defendant on the site of two of the houses. At 227 he said:

“[A] railway station is not merely in its construction, but in its mode of occupation, something entirely different from any dwelling house, warehouse or even manufactory, which could have been erected on the land.”

Earlier, at 225 Kekewich J had made reference to the significant difference a station use of the dominant land would have on the consequent use of the passage, and said that: “… a large number of travellers” wished to use the passage “especially in the morning and again in the evening”, which he said “must necessarily impede the work of [other dominant owners] in loading and unloading their vans”. At 228 he said that the defendants had “made it impossible that the passage shall be used for the purpose for which it was designed”.

In RPC Holdings, a prescriptive right of way had been enjoyed in connection only with agricultural use of the dominant land, which was a field. Harman J held that the way could not be used in connection with the use of the field as a caravan and camping site, on the basis that “the use proposed would be an unjustifiable increase of the burden of the easement” (at 1036A).

The test laid down in Wimbledon was considered and reformulated somewhat in Glass. Harman LJ, in the passage at 562F-G already quoted, referred to a “change [of] identity” and said: “If there be a radical change in the character of the dominant tenement, then the prescriptive right will not extend to it in that condition”, I do not believe he was thereby seeking to suggest a different test. This is supported by the fact that Davies LJ in Glass cited the observations on Wimbledon with obvious approval - see 567D-G. Indeed, he went on to say (at 567G to 568A):

“An increase in burden [as referred to in Wimbledon] in this context must, I think, be taken to mean a different or additional burden.”

The words “change of identity” and “radical change in character” in the judgment of Harman LJ were fastened on in Giles -v- County Building Constructors (Hertford) Limited (1971) 22 P&CR 978. In that case, a right of way had been obtained by prescription in favour of land which had two attached dwelling houses on it. Brightman J held that the right of way could continue to be used, even after the two houses had been demolished and replaced by a three-storey block of six flats, a bungalow, a house and eight garages, a redevelopment which also involved constructing a roadway on the dominant land so that traffic could pass over it, rather than merely up to it. Rather than involving a change of identity or a radical change of character, Brightman J described the development at 987 as “evolution rather than mutation”. He continued:

“To some extent, of course, the matter must be one of degree, because I quite see that the erection of a skyscraper block of flats upon the [dominant property] might well be said to cause a radical change in the character of the dominant tenement which alters its identity. But that is not what is proposed here.”

A somewhat different approach may be discerned in the later decision of by the Court of Appeal in Ray -v- Fairway Motors. In that case, it was argued that an easement of support, obtained by prescription, could no longer be enjoyed in circumstances where the owner of the dominant land had extended his building so as to increase, indeed virtually to double, the weight thrown onto a wall on the building owned by the defendants. At 265-266, Willmer LJ said this:

“I do not think that there is any room for doubt as to the law. The difficulty, as is not uncommon, is to apply a perfectly well established principle of law to the facts of the particular case. As I understand it, the principle dating back at least to Lutrell’s case, is that an easement is extinguished when its mode of user is so altered as to cause prejudice to the servient tenement. Whilst an easement of support in relation to a building may be extinguished if the building is so altered or reconstructed as to throw a substantially increased burden on the servient tenement to the prejudice of the owner thereof.”

At 267 he made reference to the fact that the onus lay on the defendants, and that they had “entirely failed to prove that the erection of the plaintiff’s shed on top of the wall caused them any prejudice” so as to justify the contention that the plaintiff’s easement of support was extinguished.

At 271-272 and at 274, Russell LJ and Fenton-Atkinson LJ respectively expressed similar views. At 272 Russell LJ explained in a little more detail what he meant by substantial prejudice in this context, namely:

“A substantial additional restriction upon the use to which the servient tenement could be put or upon legitimate activities thereon. In my judgment, it is for the servient owner to establish this ….”

In Wood -v- Saunders (1875) 10 Ch App 582, decided some seven months before Wimbledon, the dominant land at the time of sale contained a house “adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat” on land retained by the vendor. The purchaser subsequently extended the house, “and turned it into a lunatic asylum in which 150 persons were resident” and also “altered the drains and made them all discharge into the ditch or moat”. The upshot of the decisions of Hall V-C (reported at 583n) and the Court of Appeal (whose concurring decision is given very briefly at 585 and whose order is set out at 586) was as follows. The purchaser was entitled to use the drainage system for the benefit of the house in its original form, ie as adapted for 25 occupiers, without adjustment to take into account the fact that there had been an alteration so that all the drainage was into the moat or ditch, but he was not entitled to use the drainage system for the benefit of the extension to the house.

It is important to appreciate that the purchaser in that case was a tenant exercising an option under his lease. In his reasoning, at 584n, Hall V-C said this:

“There had been a stipulation in the lease that the buildings were not to be altered without the lessor’s consent, which was never asked for. The right to the passage of soil was not an unrestricted right, but was at that time to some extent limited, as the mansion-house could not be enlarged without the consent of the lessor, and it must be held that the grant [ie the easement granted in the conveyance] was on the same terms as the lease. The words as to the passage of soil could not be held to apply to any additions to the buildings.”

It is, however, relevant to mention that, shortly after that passage, Hall V-C went on to say at 584n - 585n:

“It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition. In ascertaining the extent of the right of a user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principles laid down by Mr Justice Willes in Williams -v- James LR 2 CP 577, as a reasonable use for the purpose of the land in the condition in which it was when the user took place …. The matter must however be looked at reasonably and no small addition to the house would be improper.”

With the assistance of those authorities I now turn to consider their application to the present appeal.

The issue before the judge was whether the drainage easement, impliedly granted in 1982 at a time when the dominant land was used as a bakery, could continue to be enjoyed following the redevelopment of the dominant land for the purpose of two residential houses.

The authorities discussed above appear to me to indicate that that issue should have been determined by answering two questions. Those questions are:

In my opinion, the effect of the authorities in relation to the present case is that it would only be if the redevelopment of the site represented a radical change in its character and it would lead to a substantial increase in the burden, that the dominant owner’s right to enjoy the easement of passage of water through the Pipe would be suspended or lost.

In reaching this conclusion, I am relying principally on cases relating to rights of way. It appears to me that none of the decisions concerned with the passage of water are inconsistent with such reliance, and there are two such decisions, namely Wood at 585n and Atwood at 388H, where suchcases were expressly relied on. The satisfaction of only one of the two requirements will not, at least on its own, be sufficient to deprive the dominant owner of the right to enjoy the easement, in light of the first and third principles which I have suggested can be extracted from the cases. However, where both requirements are satisfied, the dominant owner’s right to enjoy the easement will be ended, or at least suspended so long as the radical change of character and substantial increase in burden are maintained.

I do not consider that this analysis is called into question by the decision of this court in Ray -v- Fairway. Leaving on one side the point that it was a case concerned with a rather different sort of easement, it seems to me that, on analysis, it is consistent with the approach I have suggested. It would not appear that the building work which had been carried out on the dominant land resulted in there being a radical change in its character. In those circumstances, the servient owner could only satisfy one of the two requirements I have identified, namely a substantial increase in the burden on his land. That, of itself, was not enough to justify his contention that the easement of support had been lost. He therefore had to rely on what I have identified as the second principle to be derived from the cases, namely that the extra burden on the servient land resulting from the development of the dominant land represented excessive use of the easement. The passages I have quoted from the judgments in the Court of Appeal were ultimately concerned with the question of whether, in relation to the easement of support, the extra burden imposed by the development of the dominant land resulted in the use of the easement of support (if one may put it that way) being excessive. For the reasons given in the judgments, the Court of Appeal concluded that it was not.

I readily acknowledge that there are two unsatisfactory features of the approach embodied in the two questions I have identified as requiring to be answered in a case such as this. First, as already mentioned, the various cases to which we have been referred are not entirely consistent and clear. However, I believe that the two questions represent a principled, consistent and coherent basis for determining the issue. Further, to put it at its lowest, it does not seem to me that the way in which any of the judgments in the cases have been expressed is inconsistent with the approach which I have suggested.

The second potentially unsatisfactory feature of the approach I have suggested is that both questions could be said to involve an exercise which, in many circumstances, may have a rather uncertain outcome. What may appear to be “a radical change in character” to one judge could easily appear differently to another judge; equally, one judge may consider a particular increase in the burden on the servient land to be “substantial”, whereas another judge may not. It is, perhaps, inevitable that the questions have to be expressed in this rather generalised way, because each case will very much turn on its own facts, with regard to the particular easement, the position on the ground at the date of grant, the surrounding circumstances at the date of grant, and the nature and effect of the redevelopment that has subsequently taken place. What cases such as Glass, Cargill and Giles demonstrate is that, before a change of use or redevelopment can be sufficiently substantial for the servient owner to succeed on the first question, it really must involve something “radical”. Similarly, before the servient owner can succeed on the second question, the cases showthatthe court must be satisfied that there has not merely been an increase (or change) in the enjoyment of the easement as a result of the changed character of the dominant land, but that there has been a real increase (or change) in the burden on the servient land.

So far as the first question the judge had to consider is concerned, he clearly came to the view that there would be a radical change in the character of the site as a result of the redevelopment. In addition to the passages I have already quoted from the judgment, he described the redevelopment as resulting in “a completely different type of use” and “a radical change” being “a change from a factory to two houses”. In light of the way in which he expressed himself, it seems to me very difficult to argue that the judge misdirected himself in law. All the more so as he was referred to Williams, Wimbledon and Glass, as well as Atwood.

However, the mere fact that the judge has not misdirected himself, in the sense that he appears to have applied the right legal principles, does not, of course, mean that this court cannot interfere. We have to ask ourselves whether the judge, having directed himself correctly, nonetheless reached a conclusion which, in light of the primary facts, he could not have reached. In that connection, it should be borne in mind that an appellate court should not disturb this sort of conclusion merely because it thinks that it would have reached a different decision from the judge: before we can interfere, we must be satisfied that he reached a conclusion which was not properly open to him.

In my judgment, the combination of structural change, involving the destruction of the one building on the site and its replacement by two other buildings, and change of use, from purely industrial to purely residential, meant that the judge’s conclusion that there was a radical change in the character of the site was one he was entitled to reach.

The judge’s conclusion derives some further support from the fact he found that, as at the date of the implied grant of the right of drainage, “it would not have been contemplated that the bakery would have ceased to be used as a manufactory”. It is said that this was not a finding which the judge was entitled to make. However, in the absence of any evidence to the contrary, I think that a judge is normally entitled to assume that, where land subject to a transfer is used for a particular purpose, the parties to the transfer would not contemplate a radical change in the buildings on the land and in the use of the land.

As the judge reached the conclusion that there was a radical change in the character of the site he had to go on to ask himself whether that change in character would result in a substantial increase in the burden on the servient land, in this case the cottage.

In this connection, McAdams could not succeed merely because the dimensions of the Pipe were large enough to cope with the extra flow which would come from the houses (see what was said by Hall V-C in the second passage I have cited from Wood at 584n). The question for the judge was whether there would be a substantial increase in the burden on the servient land as a result of the redevelopment of the site.

When considering that question, the judge, in my view, was not, as a matter of law, limited to considering the actual extent of the enjoyment of the easement by the dominant land at the time of the creation or grant of the easement. He was entitled to take into account possible alterations or intensifications of the use to which the dominant land was put at the time of the creation of the easement. That would seem to me to follow, as a matter of logic, from what was said by Harman LJ in Glass at 562F-G and by Templeman LJ in Cargill at 447E and 447F (albeit they were not cases considering a radical change in the character of the dominant land). Indeed, I think it follows from the fundamental principle enunciated by Thesiger LJ in Wheeldon -v- Burrows at 49.

Accordingly, I do not consider that it would automatically have defeated McAdams in the present case if the judge had been satisfied that the use of the Pipe by the two houses erected on the dominant land would have substantially exceeded the extent of the actual use of the Pipe at the time the easement was created. However, I do not consider that it follows from this that, if it could have been shown that the bakery use of the site could have been intensified so as to result in an increase in the enjoyment of the easement which was greater than any likely enjoyment of the easement by the two houses, the latter enjoyment would automatically be lawful.

The fact that the owner of the cottage in the present case must be taken to have accepted that an intensification of the bakery use of the site could lead to an increase in the use of the Pipe, over that which was being enjoyed when the easement was granted, does not mean that he should be taken as being equally prepared to accept a substantial increase in the use of the Pipe due to a substantial change in the character of the site or its use. Further, it would not be fair to conclude that there was no substantial increase in the extent of the enjoyment of an easement due to a change of use in the dominant land, simply as a result of comparing the likely level of enjoyment under the new use with the maximum possible level of enjoyment under the previous use.

The evidence in the present case demonstrates the difficulty, indeed the unfairness, to the servient owner, if one was to approach the case on the basis of such a comparison. The maximum flow through the Pipe from the two houses was said to be 2,400 litres a day, but that was based on there being four occupiers of each house. However, to compare that figure with the flow resulting from the maximum use of the bakery would not involve comparing like with like. Given that each house had four bedrooms, it would not be unrealistic to postulate that there could be eight occupiers per house, which would result in the flow through the Pipe being twice the 2,400 litres a day. Indeed, while I accept that it would be unlikely, the possibility of a four bedroomed house having more than eight occupants is well short of fanciful.

Accordingly, it seems to me that the exercise the judge had to carry out here should have been to compare the flows of water from the site through the Pipe by reference to the likely range of levels of flow for a bakery and for two houses, rather than the actual levels. Of course, in carrying out that exercise, any evidence as to the actual levels could well be of relevance, quite possibly of great relevance. Evidence of the actual intensity of use of the site and of the Pipe, was therefore relevant, but the judge was not limited to such evidence: potential intensitiesof use would also have been relevant. However, when considering potential intensities, he would have had to exercise care in ensuring that theywere realistic, and tobe satisfied that he was comparing like with like in terms of equally probable intensities of potential enjoyment of the easement, resulting from bakery use and from residential use.

In the present case, the evidence before the judge concentrated on the likely extent of the actual use of the dominant land, and therefore of the actual enjoyment of the easement by the bakery on the dominant land, in 1982. There was no specific investigation as to what might have been reasonably contemplated, as at that time, as being a possible, more intensive, use of the bakery, which would have resulted in a more substantial enjoyment of the easement, in the form of an increased flow of water from the bakery through the Pipe, save to the extent that the consequences of ten people employed in the bakery was canvassed by Mr Haiste. However, the feasibility of ten people working at the bakery was not investigated.

It might have been established, through the evidence, that the number of people working in the bakery could easily have increased, and could easily have been contemplated in 1982 as increasing, to say, thirty people, with the result that the consequent possible flow of water through the Pipe, based on Mr Haiste’s figures, would have substantially exceeded any likely flow of water through the Pipe resulting from any reasonable use of the two houses on the site. If that had been the evidence before the judge, and he had accepted it, I consider that he would almost certainly not have been entitled to reach the conclusion that he did.

However, the nature of the evidence before him was very different, and it was on the basis of that evidence that the judge had to decide the case. On the evidence before him he reached the view that “there would be a substantial additional flow generated by the occupation of both houses … compared with any possible likely use of and consequent drainage flow from the bakery”. He also put it thus: “the overwhelming possibility was that “the consumption rates in the two houses are likely in virtually any circumstances to be significantly higher than the flow from the bakery.

The approach of this court to the judge’s conclusion on the second question, whether there was a substantial increase in the burden on the servient land, must be very similar to that to be adopted in relation to the first question, whether there was a radical change in the site. The primary facts found by the judge are not under attack, and the question for us therefore is whether he applied the wrong test or arrived at a conclusion which he could not properly reach. In this connection, it is hard to see how it could be said that the judge had misdirected himself on the face of his judgment. It is true that he did not say in terms that he was of the view that there had been a substantial increase in the burden on the servient land as a result of the change in the character of the dominant land. However, the passages I have cited from his judgment, when read on their own, and even more when read in the context of the rest of his judgment and bearing in mind that he was referred to the cases I have mentioned, appear to me to point clearly to the conclusion that he was of the view that the increased flow of water through the Pipe as a result of the redevelopment of the site did represent a substantial increase in the burden on the servient land.

I must admit to very considerable hesitation before coming to the conclusion that this was an opinion which the judge was entitled to reach, and with which this court should not interfere. However, despite Ms Selway’s attractive submissions, particularly bearing in mind the extent to which the issue depends on the facts of the particular case, and the consequent respect which this court must give to the conclusion of a judge who has not misdirected himself in law, I am of the view that his opinion is one with which we should not interfere.

Mr Haiste said that the likely flow from the bakery was between 550 and 900 litres a day. However, that evidence has to be subjected to two important qualifications. First, on the judge’s finding as to the number of workers in the bakery as at 1982, it seems to me that one is much closer to 550 litres a day than to 900; indeed, on the judge’s findings as to the number of people employed at the bakery, a figure lower than 550 litres a day may well be justified. Secondly, Mr Haiste said that his own figures were arrived at on the basis of a category of use which he believed would probably lead to an over-estimation. On the other hand, Mr Haiste said that the flow from the two houses could easily reach 2,400 litres a day. These figures speak for themselves in the sense that the redevelopment plainly resulted in an increased use of the Pipe to a degree which was accurately described by the judge.

The question for the judge was ultimately whether the change in terms of quantum, in the enjoyment of the drainage easement would substantially increase or change the burden on the servient land. Given the fact-sensitive basis of this determination, the extent to which that determination was primarilya matter of assessment for the trial judge, the correctness of his stated approach as a matter of law, and the nature of the evidence presented to him, I have decided that his conclusion was one to which he was entitled to come.

Accordingly, I would dismiss this appeal.

I have had the advantage of reading in draft the judgment of Lord Justice Neuberger and I agree with his conclusion.

The judge made the following material findings:

The expert evidence referred to by the judge was given by a consulting engineer, Mr John D Haiste BSc FICE. He put in a written report dated 18^th November 2002, the broad effect of which is summarised in paragraph 18 of Lord Justice Neuberger’s judgment. Mr Haiste also wrote a supplemental letter dated 23^rd November 2002, in which he set out in the following table the percentage differences in flows between the bakery and the houses for the range of scenarios he had considered:

The easement claimed is a right of drainage through a pipe passing under the site of Whyte Cottage which was in existence and in use by the bakery on 8^th April 1982. The basis of the claim is an implied grant under the first rule in Wheeldon v Burrows (1879) 12 Ch. D. 31, stated by Thesiger LJ, at p 49, as follows:

“the first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”

It is not in dispute that, by virtue of that rule, a right of drainage passed to Mr Richards and his successors in title on the conveyance to him of the bakery on 8^th April 1982. The question is whether the right could continue to be used after the demolition of the bakery and the erection of two detached four-bedroomed houses in its place.

The following observations may be made about the relevant authorities:

In the first category are Wimbledon and Putney Conservators v Dixon (1875) 1 Ch. D. 362 and RPC Holdings Ltd v Rogers [1953] 1 All ER 1029. In the Wimbledon case it was held by this court (affirming the decision of Sir George Jessell MR) that a prescriptive right of way for agricultural purposes could not be used for the transportation of building materials to be used in the erection of houses or other buildings, other than ordinary farm buildings, on the dominant tenement, on the ground that such an alteration in its character would substantially alter and increase the burden of the easement on the servient tenement. Again, in RPC Holdings Ltd v Rogers it was held that a prescriptive right of way for agricultural purposes could not be used in connection with the use of the dominant tenement as a camping ground. Following Williams v James and the Wimbledon case, Harman J felt no doubt that the way was limited to agricultural purposes, and that to extend it to the use proposed would be an unjustifiable increase of the burden of the easement; see [1953] 1 All ER, at pp 1035-1036. Another authority in the first category is Milner’s Safe Co Ltd v Great Northern and City Railway Co [1907] 1 Ch 208, where part of a dominant tenement consisting of residential and warehouse property was converted into an underground railway station. It was clear that that had resulted in a substantial increase in the burden of an implied right of way.

In the second category are British Railways Board v Glass [1965] Ch. 538 and Giles v County Building Constructors (Hertford) Ltd (1971) 22 P&CR 978. In Glass it was held that a prescriptive right of way across a level-crossing in connection with the use of the dominant tenement as a caravan site was not limited in regard to the number of caravans on the site, and that the mere increase in the number of caravans and the consequent increase in the user of the crossing did not amount to an excessive user of the right. At p562, Harman LJ, having stated that the conclusion must be based on a consideration of what must have been the supposed contents of the lost grant on which the prescription rested, said:

“If this be supposed to be a grant of the right to use the ‘blue land’ as a ‘caravan site’, then it is clear that a mere increase in the number of the caravans using the site is not an excessive user of the right. A right to use a way for this purpose or that has never been to my knowledge limited to a right to use the way so many times a day or for such and such a number of vehicles so long as the dominant tenement does not change its identity. If there be a radical change in the character of the dominant tenement, then the prescriptive right will not extend to it in that condition. The obvious example is the change of a small dwelling-house to a large hotel, but there has been no change of that character according to the facts found in this case.”

In Giles the dominant tenement consisted of two attached dwelling-houses which had formerly been used as a convent. It was submitted on behalf of the servient owner that the proposed demolition of the existing buildings and the erection of a three-storey block of six flats, a bungalow and a house and eight garages would alter the condition of the convent site and increase the burden on the servient tenement. In rejecting that submission, Brightman J, having read the foregoing passage from the judgment of Harman LJ in Glass said, at p. 987:-

“The important expressions, to my mind, are ‘change of identity’ and ‘radical change in character’. In my view, the use of the convent site for the erection of seven modern dwelling units in place of the two existing houses, cannot properly be described as ‘changing the identity’ or ‘radically changing the character’ of the convent site. I think it is evolution rather than mutation. Assuming a right of way to exist for the benefit of the convent site, that right existed to serve the purposes of the convent site as the site of dwelling houses and the convent site will continue to be used for dwelling-houses. To some extent, of course, the matter must be one of degree, because I quite see that the erection of a skyscraper block of flats on the convent site might well be said to cause a radical change in the character of the dominant tenement which alters its identity. But that is not what is proposed here.”

Another authority, though not a right of way case, which may be said to fall into the second category is Cargill v Gotts [1981] 1 WLR 441, where it was held that a prescriptive right to take water from a mill pond for agricultural purposes was not limited to the purposes for which it was used when the right began to be asserted, but could be used “for all purposes according to the ordinary and reasonable use to which Grove Farm might be applied at the time when the right was and continued to be asserted”; per Templeman LJ, at p 447.

Notwithstanding the apparent gloss which Harman LJ put on it in Glass (adopted by Brightman J in Giles), the judgment of Templeman LJ in Cargill v Gotts confirms that the principle stated in Williams v James continues to apply to implied or prescriptive rights of way and other like rights, including rights of drainage. All that Harman LJ was seeking to do was to prescribe a test in the application of the principle. Accordingly, the right of drainage impliedly granted to Mr Richards and his successors in title by the conveyance dated 8 April 1982 was a right of drainage for all purposes according to the ordinary and reasonable use to which the bakery might be applied at that date.

The question was one of fact and degree to be decided by the judge. Though it is open to this court to interfere with the decision of such a question more readily than a decision of primary fact, it does so reluctantly and with circumspection, and will not do so where there was evidence to justify the decision and the test applied by the judge was open to him on the authorities.

In the present case Judge Barratt QC referred, amongst other authorities, to Williams v James, the Wimbledon case and Glass. Evidently, in holding that the redevelopment of the bakery and its subsequent use for residential purposes was a completely different type of use, “a radical change”, he was adopting the test prescribed by Harman LJ. The question, a difficult one, is whether, on the evidence, the judge was justified in reaching the conclusion that he did.

On one view, the use of the bakery site as a site for two detached four-bedroomed houses was not an ordinary and reasonable use to which the site might have been applied in 1982. Moreover, in one sense, and in any rate in planning terms, the change from one use to the other was a radical one. But it is, at the least, extremely doubtful whether such a change, unaccompanied by any increase in the burden of the easement, i.e. in the quantum of the user, can be enough; cf. Atwood v Bovis Homes Ltd (supra). In each of three authorities in the first category (see paragraph 80 above) the change in the user of the dominant tenement was coupled with a substantial increase in the burden of the easement. To the same effect is the judgment of the Court of Common Pleas delivered by Grove J in Harvey v Walters (1873) LR 8CP 162, 166 (an eavesdrop case):

“We are of the opinion that the question here….. is, whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement…. there must be an additional or different servitude, and the change must be material either in the nature or in the quantum of the servitude imposed.”

The judge did not refer simply to a radical change in the use of the bakery site. He went on to refer to the expert evidence:

“that in all probability there would be a substantial additional flow generated by the occupation of both houses once occupied. This additional flow is to be compared with any possible likely use of and consequent drainage flow from the bakery.”

In my judgment the judge was entitled to treat the evidence of Mr Haiste embodied in his report and supplemental letter as being sufficient to establish that the change of use would probably have resulted in a substantial increase in the burden of the right of drainage. It is perhaps a borderline case. But I do not think that the judge’s conclusion is one with which this court could properly interfere.

I would therefore dismiss this appeal.

The grant of a drainage easement over the grantor’s land which is implied under the rule in Wheldon v Burrows (1879) 12 Ch. D. 31 allows the grantee an easement corresponding to the facility which the grantor himself found necessary to use at the time of the implied grant. To determine whether the subsequent user is excessive, comparison must be made with what was the user at the time of the implied grant. Further, not every excessive user entitles the owner of the servient tenement to obstruct the use of the easement. Where that owner cannot otherwise abate the excessive user, he can obstruct the whole of it (Gale on Easements 17^th ed. (2002) at para. 12 – 82). Similar principles apply where the excessive user is reasonably apprehended.

I own to finding the present case a difficult one and very close to the line. In each case it is for the trial judge to make the required comparison in order to assess whether the user, actual or threatened, is excessive and cannot be abated by the owner of the servient tenement. That, as Sir Martin Nourse has pointed out, is a question of fact and degree, and the trial judge’s conclusion on that question is one with which the court will only interfere if he did not have the material on which to arrive at that conclusion or was otherwise plainly wrong.

Whilst there are aspects of the judge’s reasoning which were justifiably criticised by Miss Selway, I am persuaded by Mr. Widdup that the judge did have evidence before him to enable him to reach his conclusion, in effect, that the apprehended user of the easement by the owners of two four-bedroom houses was excessive, and that the obstruction of the easement was justified.

For these as well as the reasons given by Sir Martin Nourse I agree with Neuberger L.J.’s conclusion. I too would dismiss this appeal.