Development in the face of an easement

In the wake of Regency Villas, Ellodie Gibbons looks at the options for developers faced with an easement. In the recent case of Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57; [2018] PLSCS 198 (see also: Recreational easements: a new species), one of the arguments relied on by the appellants in seeking to deny the existence of an easement was that of ouster. The “ouster principle” is that use of an easement must not be so extensive as to leave the servient owner (ie the owner over whose land rights have been granted) without any reasonable use of his or her land. For example, an exclusive right to park in several car parking spaces for 9.5 hours on each weekday has been held to be invalid as an easement: Batchelor v Marlow [2001] EWCA Civ 1051. However, in Regency Villas the argument failed. Is the decision, therefore, a blow to developers faced with extensive easements? In other words, if such extensive rights as the timeshare owners at Broome Park had are nonetheless easements, is the development of property affected by such rights ever possible? This may be of even greater concern in the future, if the Law Commission’s draft Law of Property Bill produced in 2011 is ever enacted. Law Commission proposals In its report Making land work: easements, covenants and profits à prendre (2011) Law Com No 327, the Law Commission concluded that, while an easement must not grant exclusive possession, the ouster principle should be abolished altogether, and section 24 of the draft bill does just that. Consequently, an easement that stops short of exclusive possession, even if it deprives the owner of much of the use of his or her land, or indeed of all reasonable use of it, would be valid. The report says at paragraph 3.207: “…it is hard to see that the principle is particularly useful. Easements will not, of course, normally deprive the servient owner of any reasonable use of the servient land, but if the parties wish to make such an arrangement (without conferring exclusive possession) it is hard to see why they should not do so. In line with that thinking, the courts have been moving to a less conservative view of parking easements.” The Commission recognised that the effect of this would be to reverse, for the future, the decision in Batchelor v Marlow, and therefore to validate a potentially wide range of easements, particularly those that confer an “exclusive right to park”. So what are the options for developers in the face of an easement? Divert the easement The servient owner has no right to alter the route of a right of way, for example, unless the right to alter is an express or implied term of the grant of the right of way or is subsequently conferred on him or her: see Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 3 All ER 437. Subsequently, in Heslop v Bishton [2009] 2 EGLR 11, it was held that the servient owner is not entitled unilaterally to take away a right of way over an existing route by offering an alternative route. Even if a suitable alternative route is offered, there is still an infringement of the right of way over the original route, although the provision of an alternative route is relevant to the consideration of what remedy should be granted. However, the existence of a right of way and the inability to re-route it is not necessarily fatal to development. A private right of way is not necessarily over every part of the land along which the right exists. The grant of a private right of way along “the road coloured brown” on a plan may confer a right to the reasonable use of every part of the road, but there will be no actionable interference with the right unless there is a real, substantial interference with its enjoyment. For example, in FC Strick & Co v The City Offices Co Ltd (1906) 22 TLR 667 – where tenants of offices in a block of buildings had a right of access from the entrance hall, which was of large dimensions, and the landlord subsequently proposed to diminish the size of the hall – it was held that there was no right over every part of the hall. The tenants were entitled only to a reasonable use. Limit the interference with the easement It follows that not every interference with the full enjoyment of an easement will be actionable. While it is not necessary that there should be a total destruction of the easement, there must be some diminution in the enjoyment of the dominant tenement, ie the property which benefits from the easement. For example, in Jackson v Mulvaney [2002] EWCA Civ 1078, the dominant owner had a right to use the servient land as a communal garden for recreational and amenity purposes. The servient owner removed a flower bed in the garden without notice and without giving the dominant owner an opportunity to recreate or relocate it or its contents elsewhere. This was held to be an interference with the right. Rely on a reserved right to develop Where the easement is granted in a lease, it is not uncommon to find a reservation of the landlord’s right to develop. However, such a reservation may be of limited use. Where a lease reserves the right to alter the building or adjoining buildings and to build on adjoining property without regard to the diminution in light and air enjoyed by the tenant, the reservation has been held only to protect the landlord in respect of infringements of rights to light and air and not to any other easement: see Saeed v Plustrade Ltd [2001] EWCA Civ 2011; [2001] PLSCS 283, concerning development which infringed rights to park; and Green v Ashco Horticulturalist Ltd [1966] 1 WLR 889, where the reservation was held not to permit the erection of gates across a passageway. Ellodie Gibbons is a barrister at Tanfield Chambers