Increasing the burden
This page contains two cases that deal with the issue of whether or not the owner of the dominant land can change the purpose for which the land is used. Will the dominant owner be able to use the easement for the new purpose? For example, if the dominant land is agricultural land and the owner wants to build some houses on that land, will it be possible to use the right of way to get to the houses?
 EWCA Civ 214
This case sets out the general principle to be applied when deciding whether or not the proposed use of the servient land by the dominant owner - when the purpose for which the dominant land is used is to change - will amount to an excessive user.
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. Neuberger LJ, at paras 50 and 51:
- "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).
Thompson v Bee  EWCA Civ 1212
After considering the terms of the former owner’s Will and the background, the Court concluded that the subject land and its connected right of way were not restricted to the agricultural use made of them as at the date of the grant; the right of way was expressed to be "at all times and for all purposes" and should not be restricted without clear wording and a compelling context. However, the CA found no reason to interfere with the trial judge’s finding that the intended use of the track for the purposes of a residential development of three houses would be an excessive user of the easement.
The right of way was used in common with other persons. On the issue of excessive user the judge said:
- " ... it seems to me that on the evidence I saw and heard there would likely to be endless trouble over cars coming and going over and across the narrow track and entrance way. The odd car, van, tractor or agricultural vehicle is one thing: daily cars (up to nine permitted by the planning permission quite apart from visitors and other callers), visitors and regular postal, rubbish, oil and sewage [services] seems to me to be quite different to that contemplated at the time." (Para 17 of the CA judgment).
Decision on Appeal
The CA considered whether access over the right of way to the proposed residential development on the Garth would be excessive user and thus amount to an actionable nuisance: It would not interfere with the trial Judge’s evaluation of matters of fact and degree unless it could be shown that he had erred in principle or that his conclusion was plainly wrong.
The Court concluded that the Judge had been entitled to take the view that the proposed user would be excessive; there was sufficient material relating to the likely significant increase in user so as to justify the Judge’s inferences concerning the likely effect on the Respondents’ enjoyment of their property and the track. Mummery LJ at para 42:
- "In my judgment, the judge was entitled, on the evidence that he heard and on the points argued before him, to conclude that the proposed user would be excessive. It could not be justified simply by reference to 'all purposes' which does not authorise use to the point of an unreasonable level of interference with the rights of the servient owners to their property and to use the way in common with the occupiers of the dominant tenement: see
Jelbert v Davies
-  1 WLR 589 in which Lord Denning MR explained at page 595 D that even a right granted in wide terms like 'at all times and for all purposes' is not a sole right, if it is
used in common with others
- , and it does not authorise unlimited use. Mere change of the Garth by itself to residential use may not be unlawful, but the Track must not be used excessively so as to interfere unreasonably or substantially with the rights of Mr & Mrs Bee to use the Track or to enjoy the rest of their property."
The decision in McAdams v Robinson was not considered and only the second element of that case was addressed (increase in use of the easement). The difference seems to be that in this case the right of way was used in common with others.