Redevelopment: Was The Proposed Use Of A Right Of Way Excessive?

This issue was considered by the Court in the recent decision of Stanning v. Baldwin [2019] EWHC 1350. The Claimant, Glynis Stanning, obtained planning permission in 2017 to demolish a property known as the Coach House situated on Gerrards Cross Common ("the Common") and build four terraced houses. Access to the Coach House was via an unadopted track over the Common.

The Defendants, the owners of the Common, opposed the redevelopment and negotiations broke down between the parties. The Court was asked to consider a number of issues which had arisen between the parties.

(1) Right of Way

The Defendants sought to stop the redevelopment, by arguing it would lead to an unacceptable intensification of the right of way over the track. The Court held, following the decision in McAdams Homes Ltd v Robinson [2004] EWCA Civ 214, that where there was no radical change in use but merely an intensification, the right of way would remain, save where the use was manifestly excessive.

The Court found that this high bar was not met in Stanning because there was no change of use and the new development would remain residential. Further, the use was not obviously going to cause a public nuisance, or breach the Common's bylaws or other statutory rights. The Court did not consider that the new use was "self-evidently excessive" on the evidence, despite possible damage to the surface of the track, an increase in cars accessing the new houses and an increase in vehicles during the construction phase. Consequently, the Court found that the continued use of the right of way would be permitted.

This case shows that where there is no change in the use of the land, owners of land with the burden of a right of way, face an uphill struggle in convincing the Court that the intensification of use of a right of way is manifestly excessive.

(2) Right of Drainage

For an easement to arise (such as the right of drainage) from long user (in excess of 20 years) the use must be "peaceable, open and not based on any licence from the owner of the land" R (Lewis) v Redcar and Cleveland Borough Council (No. 2) [2010] 2 AC 70. There was no question in this case that the use had been peaceable and so it was necessary for the Court to consider if the right of drainage had been enjoyed openly and without permission for a period of 20 years.

The evidence suggested that the drainage arrangements for the site had existed prior to 1968, and it was likely the connection with the main sewer was...