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Increasing the burden

Change of purpose

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?

McAdams Homes Ltd v Robinson
[2004] 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.

First instance

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 "c ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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