The case of Stanning v Baldwin reported last week is a useful example of how prescriptive rights can be used to facilitate development of land.

The case concerned two elements of prescriptive easements. 

Firstly whether a right of way over a Common which had been acquired by prescription whilst the benefiting land was used for one house (the Coach House) could be used for a development of the benefiting land following the demolition of the Coach House and the construction of four houses in its place. 

Secondly, whether an easement of prescription had arisen for a right of drainage across the Common when the drains were effectively hidden underground. 

It was admitted by the owner of the Common (the defendant) that a right of way over the Common had been acquired by prescription, but it argued that this right was limited to use for the benefit of one house and could not be used to benefit the claimant’s proposed development of four houses. The Judge applied the rule set out by the Court of Appeal in McAdams Homes Ltd v Robinson in 2004 that a prescriptive easement can be relied on where the use of the benefiting land is changed, provided the change in use does not amount to a radical alteration in the character of the benefiting land and does not substantially increase the burden on the servient land. 

The claimant argued that it was not a radical alteration to change the use from one house to four houses and at trial the defendant accepted this, but claimed that the use of the prescriptive right for the proposed development would be excessive and would interfere with the rights of the public to use the Common, including a public footpath across the same track as the prescriptive right of way. 

The Judge rejected the defendant’s arguments. He was satisfied that, as the use of the benefiting land had not been radically altered, that the proposed development was a permissible use of the benefiting land and that the claimant was therefore entitled to use the prescriptive right of way for the benefit of the proposed development. 

With regard to drainage, the Judge also found in favour of the claimant in that she had acquired a prescriptive right sufficient to serve her proposed development. The three essential characteristics to establish a prescriptive easement is that it must be done without force, secrecy or permission. The defendant had claimed that no such prescriptive right could be acquired for the drainage as the use had not been done openly. The Judge accepted evidence that the drains had likely been in position since at least 1963, and probably since about 1906. He took the view that the defendant had effectively been put on notice about the drainage in 1978 at the latest, when the Coach House was being built, as its connection to the drain under the Common must have been obvious. As the foul drain across the Common had sufficient capacity to serve the additional dwellings, the prescriptive easement could be used to serve the proposed development. The claimant therefore succeeded on both counts.

This will be of interest to developers and is a reminder that a prescriptive easement acquired when the benefiting land is used for a particular purpose at the time the easement is created, can continue to be used even if there is a substantial increase in the intensity of use (here fourfold) provided the use of the benefiting land has not been radically altered. Secondly, that even if a prescriptive easement is not apparent on the ground, if it is obvious because of other circumstances then such use can be sufficiently “open” to give rise to a prescriptive easement. 

Lorraine Rose