If landowners want to change the use of their property from agricultural to commercial or residential, then it is important to ensure that they have the correct easements in place to support that change of use.
One key consideration for landowners in this situation is whether they are able to continue to drain the surface water from their developed site into existing ditches and to use other forms of drainage that run across neighbouring properties.
There is an established principle that an easement must not exceed that which was granted or acquired. The area of law is complicated, and there is some contradictory case law. In the leading case of [McAdams Homes v Robinson & Anor], the Court of Appeal issued some guidelines on the extent of which an applied easement can continue to be used if the use of [dominant land] has changed and/or additional buildings have been constructed. The two questions that the court focused on were:
- Does the development represent a radical change in the character or a change in the identity of the land, as opposed to a mere change or intensification of the use?
- Will the use of the land, as redeveloped, result in a substantial increase or alteration to the burden on the servient land?
If the answer to both questions is ‘Yes’, then the landowner’s right to enjoy that easement will come to an end, or at least be suspended for so long as the change in character and a substantial increase in burden are maintained. Generally changing agricultural land to commercial or residential use would be considered to be a radical change in character and identity. As to the increase in burden, that will be a question of fact.
Particularly when considering changing the use of agricultural land, it is worth bearing in mind that neighbours may also have agricultural land, and this gives rise to specific additional considerations. If the drainage is through open ditches, then landowners downstream of the development may be concerned about the content of the water. Anything that impacts on nitric levels or pollutes the groundwater will be a concern. This could affect servient landowners’ Soil Protection Review and impact on farming subsidies under the Single Payment Scheme or under any Environmental Scheme.
It is also worth considering that at first glance, it may appear that there will be no intensification of the amount of surface water draining into a ditch. However, with agricultural land, rainwater generally sinks into the ground. Still, with commercial developments, where they are predominantly covered with hard surfacing, rainwater and particularly stormwater will likely run off the land more quickly into the drains and ditches. This will intensify the amount of water significantly that the drains need to carry. Where existing ditches and drains cannot cope with the increased speed of flow, it is possible that there could be an increased chance of flooding.
If you are planning on making a significant investment in developing a piece of land and changing its use, then it is worth seeking professional advice and, where necessary, assurances and indemnity from servient owners that rights currently enjoyed by the land will continue in the future.