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Increasing the burden
The site (the dominant land) originally housed a bakery. The bakery had the benefit of an easement, which arose by implication on the initial division of the property from the neighbouring land, to discharge foul and surface water from the bakery through a pipe under the neighbouring garden to the public sewer. A developer wanted to erect two-detached four bedroom houses on the old bakery site. The judge held that this represented a radical change in the character of the site, rather than a mere intensification of use, and that there would be a substantial increase in the burden on the servient land. Thus, interference with the drainage by the owner of the servient land was justified and the developer lost its claim for the cost of an alternative system that it had to put in place. The CA upheld the judges decision.The authorities discussed above appear to me to indicate that that issue should have been determined by answering two questions. Those questions are:i) whether the development of the dominant land, i.e. the site, represented a "radical change in the character" or a "change in the identity" of the site (as in Wimbledon, and indeed as in Milner's and RPC Holdings) as opposed to a mere change or intensification in the use of the site (as in Glass and Cargill, and indeed in Giles);
ii) whether the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land, i.e. the cottage (this test being that laid down in Harvey and in Wimbledon and applied in Milner's and RPC Holdings). 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. (Neuberger LJ, at paras 50 and 51) McAdams Homes Ltd v Robinson [2004] EWCA Civ 214.
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