We have expanded the introductory paragraphs in Excessive user to consider the different approach to express and prescriptive easements and considered case law in the light of both.
Easements: scope and extent
A practice note on the scope and extent of easements.
The following abbreviation is used in this note:
LPA 1925: Law of Property Act 1925.
Practice notes on easements
This practice note forms part of a series of practice notes considering the various aspects of the law governing easements.
The other practice notes in the series are:
In addition, the Practice note, Overriding interests and the Land Registration Act 2002 (www.practicallaw.com/8-107-4576) covers the rules governing overriding easements.
The parameters of an easement
The parameters of an easement, whether expressly granted or acquired by implied grant, or prescription, are defined by the following concepts:
The physical extent of the easement, for example, the width of a right of way.
The purpose and manner of use, for example, a right to take water but only for the use of a single private dwelling.
Any limitations on the use, for example, a right of way that may only be used during daylight hours.
Much of the law governing how the parameters of an easement are established or altered is governed by case law and the case law is sometimes contradictory. This practice note considers a number of cases that identify the concepts and highlight the inconsistencies.
The actual scope of an easement that has been expressly granted by deed will depend on the construction of the grant. A court will construe the language of the deed in the light of the circumstances and the intention of the parties at the time of the grant.
When negotiating the deed, the parties should consider carefully how they intend the easement to be exercised, and make sure that any limitations are clearly stated in the drafting. A failure to properly define the limitations placed on an easement can lead to disputes. This problem was considered in the leading case of Risegold Ltd v Escala Ltd  EWCA Civ 1180 (see Legal update, Whether a right of access for "rebuilding or renewal" permits access for development (Court of Appeal) (www.practicallaw.com/2-383-9349)).
Risegold dealt with a right of access to adjoining retained land "for the purpose of carrying out any maintenance, repair, rebuilding or renewal to the Property".
At first instance, the High Court concluded that the right of way did not extend to access for the purpose of redeveloping the property by replacing the existing building on the property with a completely different one.
The Court of Appeal unanimously overturned the High Court's decision, making three general points:
The wording used in the deed of grant of the easement must be construed in the context of an easement. Reference to the construction of the same words in, for example, a planning law context was unhelpful.
It is necessary to look at the likely intention of the parties at the time of the grant of the easement.
Express limitations in the wording of the grant may not necessarily mean the easement is narrow in scope. The drafting might include safeguards for the servient owner because the rights being granted are wide ranging.
The Court of Appeal held that the parties intended rebuilding to include more than the reconstruction of the existing building, and noted that the order of the easement's specified purposes was significant as they had an intentional "crescendo effect". The right of access was granted for the purposes of "maintenance, repair, rebuilding or renewal". The word order signified renewal was something more than rebuilding.
However, in Alford v Hannaford and another  EWCA Civ 1099, the Court of Appeal held that a right of way granted in a transfer to pass and repass "at all times and for all purposes with or without vehicles" over and along a track did not extend to a right to drive animals over and along the track . The transferor had reserved to itself and successors in title a right of way which expressly extended to the passage of animals. If the transferor had intended to grant a similar right it would have used similar words (see Legal update, Right of way on foot and with vehicles did not include a right to drive animals (www.practicallaw.com/0-509-2400)).
For more information on the creation of easements by express grant, see Practice note, Easements: creation: Express grant by deed (www.practicallaw.com/1-385-9229).
Implied grant and prescription
Where an easement arises by implied grant or prescription, the following will need to be considered to establish the parameters of the easement that is being claimed:
The actual manner in which the easement has been used.
The actual extent of the use of the right.
The character of the dominant land before the implied grant, or during the period of prescription.
For more information on the creation of easements by implied grant and prescription, see Practice note, Easements: creation: Implied grant (www.practicallaw.com/1-385-9229) and Practice note, Easements: creation: Prescription (www.practicallaw.com/1-385-9229).
It is an established principle that the use of the easement must not exceed that which was granted or acquired. Broadly, the use of an easement can be considered in three different, but overlapping, ways:
The nature of the use.
The purpose of the use.
The amount of the use.
These three aspects are frequently looked at in the light of the character and identity of the dominant land.
Excessive use is usually considered in the context of a servient owner who acknowledges that an easement exists but is objecting to the way in which it is now being used, probably as a result of changes to the dominant land over a period of time. However, it should be noted that the servient owner cannot prevent a person from lawfully exercising an easement because another person is exercising a similar easement in an excessive and unlawful manner. See
Express grant and excessive user, some cases considered
As stated, in the case of an express grant the extent of the grant depends heavily on the construction of the words used and not the actual use. So, for example, if a right of way is actually only being used by pedestrians but was expressly granted on foot and with vehicles then it is a right of way for the expressed purposes and not the lesser use. For a prescriptive right, the actual use determines the extent of the right acquired.
In White v Grand Hotel (Eastbourne) Ltd  1 Ch 113, a right of way expressly granted for broad general purposes was held not to be restricted to accessing the land for such purposes as were reasonably required at the date of the grant. In that case a right of way for general purposes to what was, at the time of grant, a private house was not affected when the house became a hotel.
However, it may be necessary to establish what was in contemplation at the time of the grant as the case law is difficult to reconcile. In Milners safe Company Limited v Great Northern & City Railway Co.  1Ch 208 the grant of a right of way for access to houses and warehouses was held not to allow access to a railway station subsequently situated on the dominant land as this was "something entirely different" from a dwelling-house.
In Jelbert v Davis  1 WLR 589, there was an express right of way granted "at all times and for all purposes". When the easement was granted, it was used for agricultural purposes. The court held that it could not be used for access to a caravan site subsequently built on the dominant land. That would entail excessive use of the right of way "such as to interfere with other persons having a like right" . So, although the right of way was drafted widely enough to contemplate caravans passing along the route, it became excessive when considered in light of the surrounding circumstances and the impact on others. Although that decision seems difficult to square with the decision in Newcomen v Coulson (1877) 5 ChD 133 (see Express rights of way and ancillary rights) it would seem that the surrounding circumstances warranted a different conclusion.
In situations where the express grant is vague, the surrounding circumstances at the time of the grant become even more significant. So, in St Edmundsbury v Clark (No 2)  1 WLR 468,, there was an express grant of a right of way without specifying the purpose for which it should be used. The Court of Appeal held that it should be construed according to its ordinary words, and that the construction should be in light of the surrounding circumstances at the time. It was held that because, physically, the right of way was restricted to a narrow gateway, it was only a right of way on foot, because vehicles could not get through the gateway.
As a result, each case will depend upon the terms of the grant and surrounding circumstances. The general rule is that the easement can continue to be used for the benefit of the dominant land as developed provided:
The actual use is permitted by the grant.
The purpose for which the easement is being used is permitted by the grant.
The quantity of the use is contemplated or, if it is not, the use of the dominant land has not radically altered and the use would not lead to a substantial increase in the burden.
Prescriptive easements and excessive user, some cases considered
Unfortunately the case law on what amounts to excessive user in a prescriptive context is also somewhat contradictory.
To illustrate the discrepancies that have arisen, consider the two following cases concerning rights of way acquired by prescription:
In Giles v County Building Constructors (1971) 22 P & CR 978, two houses on the dominant land were served by a right of way. The owner intended to demolish the houses and build a three-storey block of six flats, a bungalow and seven garages. The court, perhaps surprisingly, held that this development did not involve a change in the character or identity of the dominant land and an excessive use of the right of way was not established.
In McAdams Homes Ltd v Robinson  EWCA Civ 214, the issue was whether an implied easement could be used for the benefit of the two houses erected in place of a bakery. The Court of Appeal held that it could not. In this case, the redevelopment of the bakery and its change to residential use was held to be a radical change and, on the evidence, there would have been a substantial increase in the use of the easement.
Neuberger LJ commented that where a radical change in the use of the dominant land occurred after the easement had been established, a prescriptive right of way could only continue to be used if the change would not result in the use being "greater in quantum or different in character".
McAdams Homes case considered
In the leading case of McAdams Homes the Court of Appeal had the opportunity to consider, and try to reconcile, some of the conflicting case law.
The Court of Appeal issued guidelines on the extent to which an implied easement can continue to be used where the use of the dominant land has changed and/or additional buildings are constructed.
Two questions have to be answered:
Does the development of the dominant land represent a radical change in its character or a change in its identity, as opposed to a mere change or intensification in its use?
Will the use of the dominant land, as redeveloped, result in a substantial increase or alteration in the burden on the servient land?
Where the answer to both questions is "yes", the dominant owner'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.
For more information on the McAdams Homes case, see Legal update, Implied easement - increase in burden on servient land (www.practicallaw.com/2-107-2226).
For more information on excessive use resulting in the termination or suspension of the easement, see Practice note, Easements: termination: Excessive use (www.practicallaw.com/7-385-9231).
Very shortly after McAdams Homes, the Court of Appeal again had to consider an extension of the use of an easement. In Hotchkin v McDonald  EWCA Civ 519, a right of way was expressly linked to the lawful use of the dominant land and that use was governed by certain restrictive covenants.
The Court of Appeal had to consider the possibility that the restrictive covenants could be modified under section 84 of the LPA 1925. For more information on the modification of restrictive covenants, see Practice note, Restrictive covenants: Lands Tribunal (www.practicallaw.com/3-107-4475).
Despite the attempt in McAdams Homes to establish a general test to establish excessive use, the Court of Appeal held that the possibility of modification was relevant when considering the circumstances that existed at the time of the grant. One of the circumstances existing at the date of imposition of the restrictive covenant was that it may not be legally possible to fix the use of a property forever. There was always the possibility that the restrictive covenant could be modified under section 84 of the LPA 1925. The Court of Appeal decided that, in these circumstances, a right of way could continue to be used in connection with the lawful use as modified. This would presumably be the case even if the modified use would otherwise have satisfied the tests in McAdams Homes. For more information, see Legal update, Effect of modification of a restrictive covenant on a dependent right of way (www.practicallaw.com/0-107-2524).
The physical extent of the dominant land also affects the parameters of an easement. For example, a right of way granted for access to the dominant land, cannot also be used in substance for access to land adjoining or neighbouring the dominant land (the additional land) (Harris v Flower (1905) 74 LJ 127). However, a doctrine of ancillary use has emerged through a stream of cases, some of which are difficult to reconcile with each other. This means that, in certain circumstances, an easement may be used in connection with land that is not the dominant land.
Ancillary use and the scope of easements have been considered in the following cases:
In Alvis v Harrison (1991) 62 P & CR 10, it was made clear that it makes no difference whether the dominant land and the additional land using the easement are owned by the same person or by different persons.
In National Trust v White  1 WLR 907, the High Court held that use of a right of way to access a car park (which was outside the dominant land) by members of the public visiting the dominant land was ancillary to the enjoyment of the dominant land, and was therefore within the terms of the grant.
In Jobson v Record  1 EGLR 113, the Court of Appeal held that felling timber on the additional land and using the right of way to move the timber to the dominant land was not permitted. The right of way was being used in substance for the benefit of the non-dominant land.
In Peacock v Custins  13 EG 152, the Court of Appeal held that a right of way expressly granted in favour of a field could not also be used to reach a neighbouring field even though both fields were being farmed as a single unit. For more information, see Legal update, A right of way acquired by grant can only be used for the benefit of land specified in the grant (www.practicallaw.com/4-101-3537).
In Das v Linden Mews Ltd  EWCA Civ 590, two owners had a right of way over a road to their respective houses. They began using a separate garden area that lay between the houses for car parking. The Court of Appeal held that access to the garden area was not necessary to access the dominant land. Access to the garden area for parking was a separate use not sufficiently connected to the dominant land. For more information, see Legal update, An easement does not extend to accomodate a use ancillary to the use of the dominant tenement (www.practicallaw.com/5-107-1598)).
The decision in Das v Linden Mews is particularly difficult to reconcile with National Trust v White.
In Massey v Boulden  EWCA Civ 1634, the dominant owners had used a track to access their house for 21 years. An extension to the house was built and they continued to use the track for a further 19 years and 10 months. The owners of the track argued that even if the house-owners had a prescriptive right of way for the house as originally built, they did not have one for the extension (and that the owners were a year and two months short of acquiring a separate right for the extension).
The Court of Appeal held that if the use of the additional land was ancillary to the use of the dominant land, then the right could be exercised in respect of both. On the facts, the use of the extension was ancillary to the use of the house as originally built.
The court did not expand on what it meant by ancillary, and again, the case is hard to reconcile with Das v Linden Mews. For more information, see Legal update, Driving over a village green and the Road Traffic Act 1988 (www.practicallaw.com/3-107-1599).
In Macepark (Whittlebury) Ltd v Sargeant  EWHC 427 (Ch), the High Court looked at some of the conflicting authorities and concluded that:
the use of a right of way in connection with additional land may be within the scope of the right that has been granted, if the use is not in substance for the benefit of the additional land;
to satisfy the above test, either the extent of the use for the benefit of the additional land must be insubstantial, or there must be no benefit to the additional land resulting from the use of the way; and
benefit includes the ability to extract profit from the additional land by reason of the use of the way.
The grant of an easement will include ancillary rights that are both:
Reasonably necessary for its use and enjoyment (see Reasonably necessary).
Capable of being an easement in its own right (see An ancillary right must be capable of being an easement in its own right).
The grant of an easement will impliedly include those ancillary rights that are reasonably necessary for its use and enjoyment (Pwllbach Colliery v Woodman  AC 634).
A wayleave to place electricity lines above the servient land carried with it a right to place towers on the land to support the lines (CEGB v Jennaway  1 WLR 937).
A right to use water pipes included an ancillary right of entry to carry out repairs to them (Jones v Pritchard  1 Ch 630).
A right in connection with a car park did not carry with it a right to erect a sign advertising the car park (Lean Asper v Northmain Carwash (1966) 56 DLR (2d) 173).
A right of way to reach a dwelling did not include a right to park. While the right to park at the front of the dwelling was desirable, it was not necessary in order to enjoy the access rights (Waterman and another v Boyle and another  EWCA Civ 115). For more information see, Legal update, Access and parking rights - are yours adequate? (www.practicallaw.com/0-385-3100).
An ancillary right must be capable of being an easement in its own right
Easements are essentially negative in character in the way they relate to the servient land and they only impose or imply positive obligations on servient owners in very limited circumstances. The servient owner's obligation is to refrain from doing anything that impedes enjoyment of the easement by the dominant owner.
Any right ancillary to an easement has itself to be capable of being an easement (William Old International Ltd v Arya  EWHC 599 (Ch)).
In William Old, the High Court held that a developer's right to lay service media across neighbouring land did not positively oblige the owners of the neighbouring land to enter into a deed of grant with a statutory undertaker. For more information, see Legal update, Easements and non-derogation from grant (www.practicallaw.com/2-386-0430).
Express rights of way and ancillary rights to repair, maintain and improve
In the absence of any express words, the general rule is that neither the dominant nor the servient owner is duty bound to repair and maintain a right of way. However, the dominant owner has an ancillary right to enter onto the servient land to repair and maintain the route in order to pass over it in accordance with the extent of the right that has been granted. The express grant of an easement can therefore imply the grant of ancillary rights reasonably necessary to ensure its exercise or enjoyment. This can include a right to make the way reasonably fit for the purpose for which the way was granted. The authority for this is centuries old, Liford's Case (1614) 11 Co Rep 46b.
Often a right of way is granted "at all times and for all purposes". The case of Newcomen v Coulson (1877) 5 ChD 133 established that the dominant owner was able to enter onto the servient land in order to construct a right of way that was suitable for the right granted to him. In that case, the dominant land had originally been used for agricultural purposes, however the right of way had been widely drawn and included carriages. After over 100 years the owner of the dominant land built 26 dwellings on the dominant land. It was decided that the extent of the grant entitled the dominant owner to build a metalled road over the right of way. As Jessell MR said:
"If you grant to me over a field a right of carriageway to my house, I may enter onto your field and make over it a carriageway sufficient to support the ordinary traffic of a carriageway, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather."
Newcomen v Coulson was followed by the Court of Appeal in the more modern case of Mills v Silver  Ch 271. It is therefore the case (particularly where a right of way is granted in wide terms, for example, with or without vehicles) that the owner of the dominant land is allowed to improve the route by making it up to the required standard.
However, improving the construction of the right of way as a result of a change to the dominant land may also result in a claim that the use of the right of way is in excess of that in the contemplation of the parties at the time of grant. If the nature of the use is radically altered or the burden on the right of way has substantially increased the servient owner may be able to show excessive use (see Excessive user).
Express grant of ancillary rights
Although ancillary rights are usually implied by necessity (see Reasonably necessary) ancillary rights will sometimes be expressed in the grant itself. Where this is the case, the extent of the ancillary rights is a matter of construction in the context of the main rights granted. A court will construe the language of the deed in the light of the surrounding circumstances and evidence of the intention of the parties at the time of grant.
In Martin v Childs  EWCA Civ 283, an easement to run services through conduits on the servient land had ancillary rights to enter to "install, repair and maintain" the conduits.
The Court of Appeal held that the meaning of the word install, had to be looked at in the context of the conduits that existed at the time of the grant and the installation of a new water pipe for an improved supply was not covered. For more information, see Legal update, Construction of rights ancillary to an easement (www.practicallaw.com/6-101-6827).